Islamic Law and the State

by

Saba Sana Kareemi

A thesis submitted in conformity with the requirements for the degree of LL.M

Faculty of Law University of Toronto

© Copyright by Saba Sana Kareemi 2011

ii

Islamic Law and the State

Saba Sana Kareemi

LL.M

Faculty of Law University of Toronto

2011

Abstract

The concepts of sovereignty and legal personality in Islamic Law and Western Law are

fundamentally different. Under Islamic law sovereignty belongs to Allah and the ruler is the

agent of the Ummah. His function is to implement, rather than make the law. Western law

assigns sovereignty to the state. The state has complete monopoly over the law making process,

giving validity to which under Islamic law was the domain of the doctrinal schools. Furthermore,

the birth of the nation-state has changed the structure in which traditional Islamic law operated

which has now been forcefully restricted in its scope. The concept of ‘asabiyya is different from

the concept of nation. The former is a natural phenomenon while the latter has been imposed

upon the Ummah. If certain changes are made to the way that the modern state operates, it can

function as an administrative tool that serves the Ummah.

iii

Acknowledgments

My family and friends for their support, and Professors Imran Ahsan Khan Nyazee and

Mohammad Fadel for their guidance.

iv

Table of Contents

ACKNOWLEDGMENTS ..........................................................................................................III

TABLE OF CONTENTS ........................................................................................................... IV

CHAPTER 1 INTRODUCTION ................................................................................................. 1

1 THE STATE AS SOVEREIGN AND LEGAL PERSON IN THE WEST...................... 2

2 ISLAMIC POLITICAL THEORIES.................................................................................. 9

2.1 IBN KHALDUN: MULK AND ‘A SABIYYA ......................................................................... 17

3 THE STATE AND TRADITIONAL ISLAMIC LAW.................................................... 25

3.1 THE CLASSIFICATION OF RIGHTS IN ISLAM .................................................................... 25

3.2 THE CONCEPTS OF CAPACITY AND LEGAL PERSONALITY IN ISLAMIC LAW ................... 28

3.2.1 The Waqf: Trust the State? ................................................................................... 32

3.2.2 Bayt al-Mal: Ruler as Agent of the Ummah.......................................................... 34

4 THE IMPACT OF MODERN INSTITUTIONS ON ISLAMIC LAW ......................... 40

4.1 PAKISTAN AS AN ISLAMIC STATE ................................................................................... 56

4.2 CONCLUSIONS................................................................................................................ 60

5 ISLAMIC STATE: AN OXYMORON? ........................................................................... 62

1

Chapter 1 Introduction

Since the emergence of the Westphalian system of nation-states, the notion of the state’s legal

personality has developed, solidified and guided both international and domestic legal practice.

The question arises; what is the impact on Islamic traditional law, especially its political

structure, of the modern concept of the state? Does the law emanate from the state or is it a direct

directive from Allah to the Ummah? Finally, is the Ummah the agent of the state, or the state the

agent of the Ummah? Does Islamic law grant legal personality to entities other than human

beings? If so, what will be the far-reaching implications of this acceptance? If not, then granting

legal personality to a State would be against the principles of Islam. What would then be the

legal ruling of all transactions carried on by and in such a nation-state? Since we are now dealing

with an entity called the state, and not the Khalifah, and this state represents the entire

community, then is each communal obligation (fard kifayah) transferred to the state and becomes

a duty of the state? Furthermore, if we assume that bay`ah given by citizens of a state is a

contract of agency, by which citizens delegate or transfer their authority to the Khalifah to

manage the affairs of the community, what happens when the state steps in?

The purpose of this study is to show why the nature of the modern state should be analyzed in

the context of traditional Islamic law. To achieve this purpose, the thesis deals with issues like

state personality, sovereignty, immunity, Islamic political theory, the nature of legal relations

underlying the state, and the legal validity of the laws that it enacts under traditional Islamic law.

The resolution of these issues is important for the progress of Islamic constitutional law in the

modern world.

Geographically, the thesis limits its concerns to the experience of British India and Pakistan. For

this purpose the methodology used is primarily Hanafi, because that is the doctrinal school

followed in that region. Also, while the issue of legal personality has been discussed, it has been

kept brief for purposes of space considerations as well as continuity.

2

1 The State As Sovereign and Legal Person in the West

Since we are dealing with the legal personality of the state, outlining the origins of the concept

would be helpful because that would illuminate its reasons for existence and its purposes.

The modern state is the product of the religious wars of Europe and the separation of the church

and the state.1 The history of the modern state begins with the Peace of Westphalia, which ended

the religious wars of Europe. Signed in 1648, it was an agreement among major European

countries to respect the principle of territorial integrity. This led to the ideas of sovereignty, non-

intervention and legal equality between states.2 “Each land would determine its own system of

governance but would refrain from interfering in its neighbors’ internal affairs.”3 The concept of

sovereignty was created to shield the state from the church, so that citizens could not appeal to

outside powers. “State became the primary institutional agents in an interstate system of

relations.”4 The monarch, as well as his administrative bureaucracy, became the agents of the

state.5 In fact, the term state arose in the sixteen century, meaning “standing” of sovereign.6

1Eric Allen Engle, “The Transformation of the International Legal System: The Post-Westphalian Legal

Order”(2004) 23:23,Quinnipiac L.Rev,23. <http://ssrn.com/abstract=1020475>

2 Ibid. at 24

3 Ibid.

4 Wikipedia, Westphalian sovereignty, http://en.wikipedia.org/wiki/Westphalian_sovereignty (as of Sept.

16, 2011, 13:28 GMT). 5 Bruce Russett, Harvey Starr, David Kinsella World Politics: The Menu for Choice ,9t ed (Boston: Wadsworth,

2010) at 59

6 Ibid.

3

That the state has legal personality is a widely accepted fact. In fact, some writers call it the first

legal person.7 Pagano, argues that the status of legal person was transferred from states to

business organizations, the main difference being that corporations are not bound by territorial

limits. He states that the creation of this fictitious immortal species has led to economic

development in the West since “ some fundamental conditions for the working of a market

economy could only be guaranteed by such a non-mortal entity. Stable jurisdiction required long-

lasting setters and enforcers of rules.”8

Not only is the personhood of the state recognized, it is now the ultimate “claim” element in

international law when it comes to entitlement to statehood in international law.9 “According to

the UN… a State is defined as "a person (emphasis added) of international law [which] should

possess the following qualifications: (a) a permanent population; (b) a defined territory; (c)

government; and (d) the capacity to enter into relations with the other States."' Much like the use

of corporate form to establish a legal fiction, personhood “gives form to an entity which permits

other States to recognize that entity as another State.”10

The concept of state as a person is now widely accepted. Marxists, realists, neorealists and

theorists of international society all seem content to treat the state as a person, despite their

different political theories.11 In fact, while standard textbooks on Public International Law, and

many other scholarly treatises deal with the concept of International Legal Personality, they do

7 UGO PAGANO “Legal persons: the evolution of fictitious species.” (2010), 6:01, Journal of Institutional

Economics,117. doi:10.1017/S174413740999021X

8 Ibid.

9 Celia R. Taylor “A Modest Proposal: Statehood and Sovereignty in a Global Age” (1997) 18;3, U. Pa. J. Int'l Econ.,745 at 760

10 Ibid.

11 Patrick Thadeus Jackson “Forum Introduction: Is the State a Person? Why Should We Care?” (2004) 30:2,

Rev.Int'l Stud.,255

4

so to highlight the role of non-state actors. It seems therefore that state personhood is a given.In

the same vein, Janne Elisabeth Nijman’s book “The concept of International Legal

Personality,”12 describes in detail the origins of the concept, and presents the ideas of well-

known political philosophers such as Leibniz, Hobbes and Kelsen. However, its main concern is

the personality of non-state actors such as individuals, organizations and corporations.

The state is often equated to a corporation. The board of directors seems very much like a cabinet

and the share like a vote. We must ask here: what is a corporation? A corporation “is that form

of human association which is not constituted by its component parts — by its members, its

officers, its property, its rules— but is separate from all these.”13 F.W. Maitland who wrote,

“The Crown as Corporation”14 and “Moral and Legal Personality” 15 states that however

disinclined a lawyer may be to “allow the group a real will of its own, just as really real as the

will of a man, still he has to admit that if n men unite themselves in an organised body,

jurisprudence, unless it wishes to pulverise the group, must see n+1 persons.”16 He thus argues

that groups have personalities of their own, distinct from those of their members. He argues that

the state is a corporation. However he posits the question at the end: “A critical question would

be whether the man who is Postmaster for the time being could be indicted for stealing the goods

of the Postmaster, or whether the Solicitor to the Treasury could sue the man who happened to be

12

Nijman, Janne Elisabeth. The Concept of International Legal Personality: an inquiry into the history and theory of international law, (T.M.C. Asser Press, 2004)

13 David Runciman “Is the state a corporation?”(2000),35:1, government and opposition: an international journal of

comparative politics,90. DOI: 10.1111/1477-7053.00014

14F.W. Maitland “The Crown as Corporation” (1901) 17:0, Law Quarterly Review, 131

<http://socserv.mcmaster.ca/econ/ugcm/3ll3/maitland/crowncor.mai>

15 Frederic William Maitland, The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University

Press, 1911). 3 Vols. Vol. 3. Chapter: MORAL PERSONALITY AND LEGAL PERSONALITY 1

Accessed from http://oll.libertyfund.org/title/873/70329

16 Ibid.

5

the Treasury's Solicitor. Not until some such questions have been answered in the affirmative

have we any reason for saying that the corporation sole is one

person and the natural man another.”17 He thus asks questions about criminal liability when the

concept of state personality is introduced. This question is dealt with later.

Maitland was building up on the work of Hobbes who outlined the concepts of natural, artificial

and fictitious persons and claimed that they were fundamental to political thought.18 Hobbes

would also influence the German pluralist Gierke who stated that collectivities have “original

power and personality as distinct from the personalities of their particular members.”19

Hobbes regarded the state as a universitas. A universitas “is a corporation considered collectively

to form a single entity that is itself capable of action.”20 A societas, by contrast, “is a partnership

based on shared agreement, which is no more than the sum of its members and has no separate

identity.”21

For Hobbes, the state is the product of a contract between multitudes to submit to a third person,

whether that person is natural or artificial. 22 Hobbes’ main concern was a strong state that would

withstand the threat of civil war, not one that was formed out of a social contract between the

sovereign and the people that was revocable. This would have allowed people to monitor the

17

F.W. Maitland “The Crown as Corporation” (1901) 17:0, Law Quarterly Review, 131

18 Janet Mclean “Review: Personality and Public Law Doctrine” (1999), 49:1, U.T.L.J.,123 at 124

19 Ibid.

20 Ibid. at 126

21 Ibid.

22 Ibid. at 124

6

state’s purposes. In the forthcoming sections we will discuss the relationship of the citizens of an

Islamic state with their rulers and compare it with Hobbes’ theory.

Influenced by Hobbes’, Maitland concluded that the state “has to be understood as a corporation

that exists outside the law.”23 This statement would lead to questions about theories of

corporation.24 However, that is beyond the scope of our thesis. Our main concern is how the

concept of state personality impacts Islamic law. Runciman’s book, while discussing the concept

of state personality, focuses on the recognition of other entities with in the state, just as most

contemporary texts of public international law focus on the recognition of other entities besides

it.

Writers in both fields of law lament the lack of a theory of state.25 Runciman attributes these to

the fact that the state was such a successful institution that there was never any need to raise

questions about it.26 Jackson comments that there has been no major effort to theorise what it

means for a state to be a person in international relations theory. Furthermore, can agency be

23

David Runciman “Is the state a corporation?”(2000),35:1, government and opposition: an international journal of comparative politics,90. at 100

24 For example, Mclean asks: The Crown too, is a fictitious legal person, but who is its author? Once the political sources of

such personality are acknowledged, then the content of Crown power is more contestable. If the Crown has sufficient legal

personality to enter a lease, why can't it commit a tort? Depending on the underlying rationale for the state, why can't there be

special law governing public contracts? Under present law, once statute no longer governs what is bought and sold by the Crown

- once democratic engagement is absent - we have little by way of a theoretical base to evaluate such transactions. The common

law's view of the state is thin indeed. Janet Mclean “Review: Personality and Public Law Doctrine”

(1999), 49:1, U.T.L.J.,123 at 144 25

Janet Mclean “Review: Personality and Public Law Doctrine” (1999), 49:1, U.T.L.J.,123 at 144; Patrick Thadeus Jackson “Forum Introduction: Is The State a Person? Why Should We Care?”(2004), (30:2),255 at 256. Mclean states that public and administrative law doctrine does not explicitly acknowledge the state’s purpose since legislative purpose has become a proxy for state purpose. The Maqasid al-Shariah, the purposes of Islamic Law define the purposes of the Islamic rule.

26 David Runciman “Is the state a corporation?”(2000),35:1, government and opposition: an international journal of

comparative politics,90

7

meaningfully located in entities other than constitutively independent human beings? Finally,

personhood “is an inescapable component of debates about responsibility, and as can be clearly

seen in international legal discussions from at least the Nuremberg Trials to the present. If the

state is a person, does it follow that only the state as a whole can be held responsible for 'crimes

against humanity' perpetrated by its representatives? Or do only individuals bear responsibility

for such actions? Is there a difference between 'natural' and 'artificial' persons, and if so, what

implications does this difference have?”27

The problems with state sovereignty are not only of theoretical but practical consequence as

well. Problems with the concept are grounded in history. It has been viewed in the past as a mask

behind which rulers hide to justify the cruelty and injustice they inflict on those they rule.28 Since

the holocaust, international politics has shifted to curtailing the powers of the sovereign.

European leaders believed that the tragedy occurred due to the lack of the sovereign state’s

accountability to anyone.

Since then efforts have been to curtail the powers of the sovereign and to make it accountable.

The first of these was Universal Declaration of Human Rights 1948, which was signed by a large

number of states. Though it was not legally binding, the declaration was the first step to bind

states to international obligations with regard to their internal affairs. The concept of sovereignty

was kept intact. The later half of the twentieth century saw the signing of multiple other human

rights conventions and covenants. 29

After the Cold War, the Westphalian norm of non-intervention in state affairs was revised. Since

1990, the United Nations and other international organizations have approved of military

27

Patrick Thadeus Jackson “Forum Introduction: Is The State a Person? Why Should We Care?”(2004), (30:2),255 at 258.

28Dan Philpott, "Sovereignty", The Stanford Encyclopedia of Philosophy (Summer 2010 Edition), Edward

N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/sum2010/entries/sovereignty/>

29 Ibid.

8

intervention, which states would have previously regarded as illegitimate interference in internal

affairs.30 These operations normally do not have the consent of government of the state they are

targeting. Examples include Iraq, Afghanistan, Somalia, Kosovo and Rwanda.

In 2001, a document called Responsibility to Protect was produced at the behest of the U.N.

Secretary General Kofi Annan. Its purpose was to revise the concept of sovereignty. The

document stated that sovereignty includes the state’s “responsibility to protect” its own citizens.

An outsider may assume this responsibility when a state commits massive injustice or cannot

protect its own citizens.31

The European Union is an attempt to fix the problems associated with absolute state sovereignty.

Rather than replacing states, it amalgamates important features of sovereignty into a

supranational institution in which the member states’ freedom of action is restrained.32 This was

done by creating the European Court of Justice, the European Parliament and by appointing a

High Representative of the Union for Foreign Affairs. Individual European states are no longer

absolutely sovereign.33

When it comes to affairs with in the state, and its liability to its citizens, the maxim “the King

can do no wrong” comes to mind. In England, the King could not be sued in his own court.34 “No

writ would lie against the Crown.”35 With the birth of the nation-state came the concept of

30

Ibid.

31 Ibid.

32 Ibid.

33 Ibid

34 Duncan Fairgrieve State Liability in Tort (New York: Oxford University Press,2003) at 8

35 Ibid.

9

sovereignty. Sovereignty and liability were considered mutually exclusive notions.36 Therefore,

the immunity of the administration was the general rule until the middle of nineteenth century.

After that, public bodies could incur civil liability and they could be liable for the torts of their

servants.37 The liability of public bodies is the domain of administrative law. Though the notion

of rule of law does exist, it has to be kept in mind that the ruler and those who work in the state’s

administration are servants and agents of the state.

2 Islamic Political Theories

The topic of government has received considerable attention from classical Muslim Jurists and

historians in the past. These include the likes of Imams Abu Yusuf, al-Baqillani, al-Baghdadi, al-

Mawardi, al-Juwayni, al-Ghazali, al-Razi, Ibn Taymiyya, Ibn Khaldun and al-Khunji.38

In fact, the earliest discord that arose in the Muslim community was based on who should be the

ruler of the Muslim Community, the Ummah, and what were to be his qualifications.39 On the

one extreme were the Kharijis, who seceded from the Caliph Sayyiduna Ali (RA) because of

their disagreement to his proposal at the battle of Siffin (37/657) that the differences arising

between him and Amir Muawiya (RA) due to the murder of the previous Caliph, Sayyiduna

Uthman (RA) should be submitted to arbitration.40 They believed that arbitration was a sin

against God. The judgment of men could not be a substitute to God’s prescription. They

advocated that it was an absolute duty upon all Muslims to enjoin the good and to forbid evil,

even at the cost of their very lives. If a Muslim committed a sin, even if he was the Imam, he

36

Ibid. at 9

37 Ibid. at 11

38 Ann K. S. Lambton , State and Government In Medieval Islam (United states ,New York, Oxford University

Press 1981.

39 Ibid. at 15

40 Ibid. at 22

10

become an apostate and hence was to be killed. The Imam was only legitimate as long as he was

following Divine Law completely. If he did not do so, he was to be removed by force. 41

On the other extreme were the Shi’is, also known as the Imamiyya. Like the Kharijis they

insisted that under certain circumstances it was the duty of the Muslims to rise against

illegitimate rulers. They believed that Sayyiduna Ali and his two sons Sadatuna al-Hassan and

al-Husayn (Radi Allah anhum) were the true heirs of the Prophet Muhammad (Peace and

blessings be upon him) and that they should have been appointed the rulers of the Muslim

community immediately after his death instead of the first three rightly guided Caliphs, that is,

Sadatuna Abu Bakr, ‘Umar and ‘Uthman (Radi Allah anhum). They believed that by not doing

so the Muslim community had committed a sin. 42

The Sunni majority on the other hand, saw the insistence of the Kharijis and the Shi’is on rising

against an illegitimate ruler as an invitation to civil war. Indeed, due to these two extremist

doctrines caused civil war in the early days of Islam. The war of Kharijis against Sayyidina Ali

(RA) and the taking up of arms against the ‘Ummayyads by the Shi’is to champion the cause of

the ‘Abbasids were the cause of great bloodshed. The development of the Sunni theory of

government was largely in response to these two extremist factions. 43

From a purely practical point of view, there are various rulings in Islamic laws that imply the

existence of a ruler. Only the ruler can implement criminal law punishments, most, of which are

the hudud (Punishments pertaining to the violation of the rights of God), in Islamic law44.

41

Ibid

42 Ibid. at 29

43 Ibid. at 21

44 Ann K. S. Lambton , State and Government In Medieval Islam (United states ,New York, Oxford University

Press 1981) at 198

11

Furthermore, he is responsible for collecting the zakah money (poor due) and for distributing it

among the poor. He is also responsible for collecting the various taxes imposed by Islamic law

on all the citizens of an Islamic state. Imam al-Ghazali also agrees with this point of view that

the requirements of Islamic law implied the existence of an institution that could execute it. 45

The khilafah (caliphate) is an institution prescribed by the Shariah. Ibn Khaldun, the historian,

argued that the validity of the caliphate was based on ‘Ijma (consensus) 46since the entire Muslim

community had established Sayyiduna Abu Bakr (RA) as the Khalifa immediately after the

passing away of the Prophet Muhammad (PBUH). Since ‘Ijma is a source of law in the Shariah,

the office of caliphate could be termed obligatory.

We have not yet elaborated the correct term for the leader of the Muslim community. Texts on

the subject use the terms imam and khalifah interchangeably.47The correct term for khalifah is

khalifatu Rasul Allah, that is, the vicegerent of the Prophet Muhammad (PBUH). In his capacity

as the head of the Muslim community, the successor of the Prophet (PBUH) was known as the

khalifah. 48However, as its religious leader he was the imam. Generally the term imam is used in

preference to the word khalifah. 49

The power that the imam holds has been derived from the Prophet Muhammad (PBUH). Muslim

jurists have stated that there are various grades of power. The first and the most perfect is the

power of God with respect to His creation in its entirety. The second is that of the Prophet

Muhammad (PBUH). After him (PBUH) comes the power of the imams, and after that comes the

45

Ann K. S. Lambton , State and Government In Medieval Islam (United states ,New York, Oxford University Press 1981), 113

46 Ibid. at 167

47Ibid at15

48 Ibid.

49 Ibid.

12

power of the qadis (judges) and other officials. 50Since the authority of subordinate officials is

derived from the ruler, without a legally valid imamate, their appointments would not be valid. In

fact, without the existence of such an institution, no judgment, no contract or testament would be

valid.

For example, in Islamic law a marriage contract is not valid without the consent of the woman’s

guardian. The guardian derives his authority from the ruler. This is because of the Hadith that the

sultan is the guardian of one who does not have a guardian. If the ruler’s authority were invalid,

what would be its affect on the contract of marriage?51

However, Muslim Jurists recognized that to hold that no public function was valid because the

rulers did not qualify under the Sharia would deal a blow to the social order.52 This became an

increasingly bigger problem in the last centuries of the Islamic empire, where the Muslim

community had split up in to various states ruled by those who held power through force. Later

Muslim jurists tried to accommodate these realities by presenting theories that would give

validity to the rule of de facto rulers. These included the likes of al-Mawardi and al-Ghazali.

Since the government in al-Ghazali’s time was the result of military power, the caliph was

whoever who had the allegiance of the holder of that military power. 53The caliph/imam only

constituted one of the components of the imamate. “He had no power and could not therefore

exercise functional authority, but no government act was valid unless performed directly or

50

Ibid. at 95

51 Mohammad Fadel “Reinterpreting the Guardian's Role in the Islamic Contract of Marriage: The Case of the

Maliki School” (1998). The Journal of Islamic Law, Reinterpreting the Guardian's Role, Vol. 3, pp. 1-26, 1998. Available at SSRN: http://ssrn.com/abstract=1221202 52

Ann K. S. Lambton , State and Government In Medieval Islam (United states ,New York, Oxford University Press 1981) at 116 53

Imran Ahsan Khan Nyazee, Outlines of Islamic Jurisprudence, Third Edition (Rawalpinidi, Pakistan , Federal Law House, 2005) at 376

13

indirectly by him.” 54On the other hand the fact that the sultan held actual power did not

legitimize his government, and therefore he needed the imam.

Ibn Jama’ went one step further and held that the holder of the power was the caliph.55 This was

the beginning of the end of the theory of the caliphate, the main concern of which was the

continuation of authority from the Prophet Muhammad (PBUH). 56

Ibn Jama’ and his contemporary Ibn Taymiyyah were writing at a time when the caliphate had

come to an end. Since the khilafah had been practically destroyed, Ibn Taymiyya set out a new

theory of government without presupposing the existence of a state from the earliest times of

Islamic history.57 He called the time of the four Rightly Guided Caliphs a continuation of the

Prophet’s (PBUH) He retains al-Ghazali’s principle of coercive power (shawkah), the purpose of

which was that a “large number of divergent opinions were gathered in one person.” Ibn

Taymiyyah recognized the contractual nature of the relationship between the ruler and his

subjects. He was the agent (wakil), the guardian (wali) and partner (sharik) of his subjects.58Ibn

Taymiyyah was not the first person to hold that the ruler was the agent of the Ummah. In the

past, Imam Abu Yusuf59and al-Baqillani60 had also held that this was the relationship between

54

Ann K. S. Lambton , State and Government In Medieval Islam (United states ,New York, Oxford University Press 1981) at114 55

Ann K. S. Lambton , State and Government In Medieval Islam (United states ,New York, Oxford University Press 1981) at 139 56

Imran Ahsan Khan Nyazee, Outlines of Islamic Jurisprudence, Third Edition (Rawalpinidi, Pakistan , Federal Law House, 2005) at 376 57

Ibid. at 378 58

Ann K. S. Lambton , State and Government In Medieval Islam (United states ,New York, Oxford University Press 1981) at149 Imran Ahsan Khan Nyazee, Outlines of Islamic Jurisprudence, Third Edition (Rawalpinidi, Pakistan , Federal Law House, 2005) at 379 59

Ann K. S. Lambton , State and Government In Medieval Islam (United states ,New York, Oxford University Press 1981) at 58

60 Ibid. at 76.

14

the ruler and his subjects. Ibn Khaldun and Imam Abu yusuf had held that the caliph was the

guardian (wali) and trustee (amin) of the Muslims.61

Since the jurists were dealing with rulers who held authority by force, they interpreted the law

according to the circumstances of their times. The only jurist who mentioned any sort of

separation of power was Khunji who stated that the ahl al hall wal ‘aqd (those of loose and bind)

could be a limitation of the ruler’s absolute power.62He did this by removing religious affairs

from the “competence of the ruler, except so far as the appointment of the main religious

officials and the execution of their decisions was in his hands.”63

Since the Muslim community had come to be ruled not by Rightly Guided Caliphs and the Sunni

jurists did not want the damage caused by civil war, they accommodated the theory of the

caliphate to validate the de facto rule of those who held power. Al-Baqillani held that if a ruler

committed acts of disobedience he was to be deposed. However, he did not specify how this was

to be done. In this regard, Ibn Khaldun gave a view that continued the Sunni tradition of

avoiding violence, while exerting the Ummah to find better rulers. He states:

“He (God) commands such activities (resistance to rulers) to be undertaken only when there

exists the power to bring them to a successful conclusion.”64 In the modern world, where

institutions have evolved immensely and democracy is the preferred form of government in

many states in the world, we can say that it is quite possible to appoint rulers that follow the rule

of law and if they do not, to depose them without the threat of violence. In fact, this should

enable the Ummah to go back to the original position of the Sunni jurists that it is a fard kifaya

61

Ibid. at 150

62 Ibid. at 118

63 Ibid.

64 Ibid. at 170

15

(communal obligation) upon the Muslims to appoint a qualified ruler that can govern their

affairs.65

Ibn Taymiyyah’s theory is practical because it focuses on the realities of our world-the Muslim

Ummah has been divided in to various states and there is no one whose person fulfills all the

qualifications that Muslim Jurists have set out for the Caliph. For example, it would be

practically impossible to find someone from the Quraysh who could qualify as a leader for the

entire Muslim community. At the same time his theory has some problems. Professor Nyazee

identifies this by stating while Ibn Taymiyyah solves the problem of multiplicity of states, it

creates another one: If the period of the rightly guided caliphs was not a state, but a continuation

of the Prophet’s mission, it cannot be imitated according to Ibn Taymiyyah.66 This creates

practical problems for the implementation of Islamic law in Muslim states.

It is submitted that this problem can be solved focusing on the contractual aspect of the rule of

the Rightly Guided Caliphs. The Rightly Guided Caliphs were inspired personalities that derived

their moral authority from the Prophet Muhammad (PBUH)- they were of the ten companions

who had been given tidings of heaven and there are various ahadith on their merits, sometimes

with entire chapters of hadith books dedicated to them, showing that they were approved by the

Prophet Muhammad (P.B.U.H) as guides for the Ummah. Since their moral probity was

acknowledged by the Prophet (PBUH), their caliphate had elements of the Prophetic mission to

it. However, this was not the same as being governed by the Prophet Muhammad (PBUH)

himself, and the Caliphs recognized this. For example, the Prophet Muhammad (PBUH)

dismantled all the idols in the Ka’bah as a part of his prophetic mission. However, during the era

of the Rightly Guided Caliphs, especially Sayyiduna ‘Umar, many treaties were concluded with

65

Ibid. at 183 66

Imran Ahsan Khan Nyazee, Outlines of Islamic Jurisprudence, Third Edition (Rawalpinidi, Pakistan , Federal

Law House, 2005) at 380

16

non-Muslims that would not be coerced in the matters of religion.67 The Caliphs had moral

authority, but their legal power was derived from the contract of bay’ah. This view has practical

implications because it explains the various rulings held by the Hanafi School of law with

regards to the affairs of Muslims with non-Muslims.68 According to their view this leads to the

conclusion that Muslims can live peacefully with non-Muslim states while following the precepts

of Islamic law.

Also, it gives practical legal validity to the authority of the ruler. The Muslims appoint someone

as their agent and guardian, who represent them in their international affairs and take care of

their interests.

Furthermore, there are ahadith that point out that various individuals derive their authority from

the Sultan. If we focus on the fact that it is the contract of bay’ah that gives authority to the ruler,

this should solve the problem of delegated authority.

Since we live in an era of democracy, it is possible to have such a contract between the ruler and

his subjects. While the ruler is bound by his contract to protect the Muslims and to represent

them in their affairs, the Muslims are bound on their end to obey their rulers as long as they are

fulfilling their end of the contract. This is what Ibn Taymiyyah terms mubayyah.69

67

,Muhammad Mushtaq Ahmed “Notions of Dar al-Harb and Dar al-Islam in Islamic Jurisprudence” (2008) 47:1 Islamic Studies 5, at 35 68

Ibid.

69 Ann K. S. Lambton , State and Government In Medieval Islam (United states ,New York, Oxford University

Press 1981 at 148

17

Also, it is possible to develop a mechanism for the removal of rulers since institutions have

developed in the modern world to make this possible without the threat of civil war.

2.1 Ibn Khaldun: Mulk and ‘Asabiyya

The problems that Ibn Taymiyya’s theory creates can be solved using the format and logic that

Ibn Khaldun provided to explain Islamic history. His political theory builds on a fundamentally

Sunni foundation, but like Ibn Taymiyyah, the concept of Tajdid al Bay’ah (renewal of the

caliph’s bay’ah from the time of the Rightly Guided Caliphs). At the same time it offers a

balanced approach compared to the all or nothing stance advocated by Western theorists when it

comes to the role of religion in government. In this regard the efforts of Muhammad Mahmoud

Rabi’ should be acknowledge, whose work focuses solely on Ibn Khaldun’s political theory for

the first time in the English language.

Ibn Khaldun identified three types of political systems: The Caliphate, mulk siyasi and mulk

tabi’i. 70

The caliphate is a system of government where rule is based on the Shariah, the norms of which

are accepted as the ultimate sovereign power. According to Ibn Khaldun this was the ideal

system and it was the criterion against which he juxtaposed mulk siyasi and mulk tabi’i. Civilized

life required recourse to ordained political laws that the population accepted. These laws would

70

Mohammad Mahmoud Rabi, The Political Theory of Ibn Khaldun ( Brill, Leiden , Netherlands, 1967) at 145

18

have the most utility if they guided people on matters related to their life in this world as well as

the next. Only the Shariah could perform this two-fold function.

“If they (political norms are ordained by God through a lawgiver who establishes as (religious)

laws, the result will be a political (institution) on a religious basis, which will be useful for life in

both this and the other world.” 71

He discussed in length the Shariah as a factor of worldly change. For example, the Arab nomads

were primitive and incompliant. When they adopted Islam, its ideals aided them in leaving their

backward habits and submitting to the divinely guided rule so that they could lead a more

civilized existence and have a powerful government. Adopting these ideals created in them a

spiritual restraint that operated from with in their own selves and terminated their weaknesses.

Under this rule, the people are subject to the norms of the Shariah, not the unbridled power of an

unjust and ruthless monarch.

Even though secular rule was the common feature of the two types of mulk he analyzed, viewed

them very differently as far as their viability and legitimacy were concerned. Mulk tabi’i, that is,

unbridled kingship, knows no power other than that which the tyrannical autocrat has

monopolized.72 The mulk (sovereignty) is based exclusively on the absolute will of an individual

who suffers some the same weaknesses as any other human beings. This form of governance

serves the interests of the ruler alone and is detrimental to the interests of the people. 73

71

Muhammad Mahmoud Rabi, The political Theory of Ibn Khaldun ( Brill, Leiden, Netherlands,1967) at 141 72

Ibid. at 142

73 Ibid.

19

Mulk siyasi on the other hand is a form of kingship in which secular political laws are supreme.

Unlike mulk tabi’I, this form of governance has both advantages and disadvantages.74 The

advantages are that the people are subservient to rational laws and not to the absolute rule of a

human being. Furthermore, applying laws based on secular reasons gives stability to the rule,

something lacking in mulk tabi’i. The disadvantage in this type of rule is the purpose it strives

for- looking after only the worldly needs of the people. For Ibn Khaldun, this is reprehensible

because it does not cover the religious aspects of human life that secure happiness in both this

world and the next. 75

Ibn Khaldun arrived at the concept of mulk before the rise of the nation-state and its

“concomitant phenomenon” of sovereignty.76 Mulk, as a concept of supreme or sovereign power

was not related to race or religion. This supreme power, in its function as a tool to realize an end,

has to be controlled by some sort of norm. The standard that Ibn Khaldun puts forward for the

success of these tools in achieving their desired ends is accepting the supremacy of the Shariah,

or if the form of government is mulk siyasi, the supremacy of codified rational laws.77 Mulk

tabi’I on the other hand, cannot succeed in its purpose of sustaining its oppressive rule for long.

This is an inevitable result of this type of kingship.

Ibn Khaldun’s approach was novel because he not only recognized that the Shariah, as the divine

foundation of the Caliph’s authority, but also power based on secular forces could be supreme

power. This approach puts him “mid-way between the European ecclesiastical theorists of the

divine right- with their postulate of a mandate of God as the foundation of the King’s authority

and the later thinkers, starting with Bodin and Hobbes, who based sovereignty on temporal

74

Ibid.

75 Ibid. at 143

76 Ibid.

77 Ibid. at 144

20

grounds.”78 Although he favored the Caliphate, as a form of government in which Shariah was

supreme, he also recognized other forms of government. He even preferred mulk siyasi, rule

based in rationally codified laws, over mulk tabi’I, that is, unbridled kingship. In this way, Ibn

Khaldun’s approach is original even compared to the Muslim jurists that preceded him. The

jurists prior to him had focused mainly on the Caliphate as a form of governance. Ibn Khaldun

not only rationalized the developments of the Caliphate, but also dealt with the concept of mulk. 79

Like the Sunni jurists before him, Ibn Khaldun considered the installation of the Caliph a

community duty. He also believed, like them, that giving bay’ah to a certain person meant

making a covenant to render obedience to him in his new capacity as the leader (Imam) of the

community. In this regard, the stance of Ibn Khaldin as well as al-Ash’ari is different from the

Shi’a doctrine that based the authority of the imam upon his inherent right as a descendent of

Sayyiduna Ali (RA), rather than upon a covenant. They believe that the Prophet Muhammad

(PBUH) himself designated him. They call this process of designation al-Nass.80

Ibn Khaldun tackled the question of what changes affected the bases of Muslim power from

Caliphate to Kingship, that is how the basis of political power changed from ‘aqd (covenant), to

‘asabiyya.81 The way that the Rightly Guided Caliphs received bay’ah from the people was

exactly like a deal. “When the people like to express their consent and to endorse the choice of a

caliph, they shake hands with him to announce the conclusion of a covenant between them. Once

they demonstrate their approval and consent, they become equally bound by the covenant and

78

Muhammad Mahmoud Rabi, The political Theory of Ibn Khaldun (Brill, Leiden, Netherlands, 1967) at 145 79

Muhammad Mahmoud Rabi , The political Theory of Ibn Khaldun, (brill, Leiden, Netherlands, 1967) at 163 80

Ibid , at 127 81

Ibid, at 130

21

must render their obedience to the Caliph.”82 He considered it to be something like the action of

a buyer and seller.83

Thus the Caliph was installed and his political authority was considered legitimate if mutual

consent was expressed by shaking hands, which confirmed the conclusion of the Covenant. After

this Ibn Khaldun analyzed the changes that affected this procedure severely. He stated that a new

era began after the Fitna84 and that power shifted as a rule to the force of ‘asabiyya.85 That is, the

foundation of political power had shifted from consent to compulsion.86 A significant example of

this change was wazi’ “restraint.” “A change became apparent only in the restraining influence

that had been religion and now came to be the ‘asabiyya and the sword.”87 In the time of the

Rightly Guided Caliphs, the covenant was the basis of authority. Since this procedure was

considered an article of faith, the Omayyad and Abbasid rulers did not alter its form. However,

they changed the essence of the contract, which they made meaningless by resorting to force as

the new basis of political power.88 They coerced people to approve the hereditary appointment of

their successors. By adopting the illegal method of coercion, both the nature of the contract of

82

Ibid 83

ibid 84

The Fitna is the civil war that erupted after the death of the third Rightly Guided Caliph, Sayyiduna Uthman. It was fought between Sayyiduna Ali’s (RA) forces and the Omayyad Syrian forces in Iraq. It led to permanent splits with in the Muslim community. The community split into three parties, the Khawarij (seceders), the Shi’a (the partisans of Sayyiduna Ali, radi Allah anhu) and the Sunnis (the orthodox Muslims). The Khawarij regarded themselves as spiritual successors of those who had assassinated Sayyiduna Uthman (RA). They seceded from the community because they considered Sayyiduna Ali (RA) to be in error first, for not supporting the murderers of Sayyiduna Uthman and second, because he agreed to stop the war against the Omayyads, and accepted arbitration which they rejected because in their view arbitration was a divine prerogative of Allah alone and not of any human being. The Shi’a were those attached to Sayyiduna Ali’s (RA) leadership based on his special relationship to Prophet Muhammad (PBUH). They adhered to him (RA) after the arbitration and extended their loyalty to his descendents. This developed into a full-fledged sect later in time. The Sunnis , the Orthodox Muslims, on the other hand, were those who sided with Muawiya at the time of the Fitna for fear of the destructive extremism of the Khawarij. They gradually consolidated their doctrine against the Khawarij and Shia and rallied the majority of the Ummah. See Ibid at 84 85

Ibid at 130 86

Ibid at 131 87

Ibid 88

ibid

22

bay’ah’a, as well as its validity became controversial. Ibn Khaldun gave the example of at least

one leading jurist who had objected to this method of extracting a covenant without consent:

“The Caliphs used to exact an oath when the contract was made and collected the declarations

(of loyalty) from all the Muslims…. It was as a rule obtained by compulsion. Therefore, when

Malik pronounced the legal decision that a declaration obtained by compulsion was invalid, the

men in power (at the time) disliked (the decision) and considered it an attack upon the

declarations (of loyalty)…. The Imam (Malik), as a result, suffered his well-known

tribulations.”89

Thus, the Omayyad ‘asabiyya had replaced the ‘ahd that gave legitimacy to the Caliphate. A

question that we have not resolved yet is what is meant by ‘asabiyya. In the past, ‘asabiyya has

been translated as the “sense of solidarity”, “group loyaly”, “esprit de corps” and “group

feeling”.90 There are three types of ‘asabiyya. The ‘asabiyya that results from blood ties is

stronger than that originating from alliance and client-ship. 91 It is an effect of living under

badawa, that is, primitive culture. However, it is also the vehicle that transforms this very mode

of living into a complete different one under hadara, that is, civilized culture. In primitive

culture, ‘asabiyya is a unified and strenuous power, with the capacity to defend the group. It

presses its claims against other ‘asabiyyas, curbing internal differences and compelling a change

to another more advanced way of life. The goal of ‘asabiyya is royal power and a life of ease.

While ‘asabiyya is the result of a primitive way of life under the badawa, it acts as an instrument

of transition, affecting the very way of living by ending it and changing to a new and civilized

way of living under hadara. 92 “The interaction between, and substitution of, causes and effects

continues under civilized culture which- as a cause this time- exerts a damaging influence on all

aspects of ‘asabiyya. Yet, after luxury, corruption and injustice reach their peak, a remaining

89

ibid at 131 90

ibid at 59 91

ibid at 50 92

Ibid at 52

23

solid branch of the ‘asabiyya may act again as a cause of change in inter-group power conflicts,

though on a minor scale, and install a new ruler.”93

Ibn Khaldun’s concept of ‘asabiyya does not imply racial tendencies. Those who are entitled to

leadership in a group acquire power because they are the heads of the most fierce, brave and

primitive branch of the group, rather than because they belong to a certain race or because they

have noble blood. While a rule can be established with the help of ‘asabiyya on a merely secular

basis, it cannot survive if moral values are lost and political virtues are abandoned. 94

In this way, Ibn Khaldun’s work was different from that of his predecessors. He did not make the

“excessive theoretical concessions” that they made to justify the rule of Muslim kings. Instead,

he sanctioned “only the political developments of the Caliphate which occurred in the early

phases of the two successive dynasties, the Omayyad and the Abbasid. The reason he gave was

that their rule did not violate altogether the ordinances of the primary sources, and still carried

some religious manifestations of the “Well Guided Caliphate.” Beyond these two periods, Ibn

Khaldun did not legitimize the later deterioration of the Caliphate and criticized the rulers for

abandoning the Religious Law and misusing luxury and power.”95 Ibn Khaldun, unlike his

predecessors did not justify Amir Muawiya’s actions by raising the excuse of preserving the

unity of the ummah. Instead, he spoke about Amir Muawiya’s need to keep the unity of the

power group, that is, the Omayyad, as it was emerging at the time as the most powerful ‘asabiyya

of the tribe of Quraish.96 This rule still had elements of the Caliphate, and on this basis was

justified.

93

Ibid at 161 94

Ibid at 162 95

Ibid at 165 96

Ibid at 164

24

Ibn Khaldun’s work was also different from that of Ibn Taymiyya. His political theory solves

some of the problems inherent in Ibn Taymiyya’s. Both did not believe in the concept of renewal

of the bay’ah and stated that the caliphate had ended after the four Rightly Guided Caliphs.

However, Ibn Taymiyya stated that the Rightly Guided Caliphate was an extension of the

Prophetic mission. If this is true, then that form of governance cannot be imitated. Ibn Khaldun,

on the other hand, placed the authority of the Caliphs in the contract of bay’a, rather than on the

continuation of the Prophetic mission. This explanation allows for a replication of that system of

governance in which the Shariah is supreme, and the ruler is the servant and agent of his people.

Since the era of the Rightly Guided Caliphs was the only one that was not based on kingship, it

would be possible to construct modern institutions under Muslim rule based on that ideal, even

though it would never be possible to find rulers with the same degree of moral probity. The ideal

would be very close to that of a democracy.

In general Ibn Khaldun viewed ‘asabiyya favourably. The concept is linked to this fundamental

question: why should we be loyal to the state? Can it be argued that the modern phenomenon of

nation-states is an extension of this concept? That is, has the nation-state widened the scope of

‘asabiyya? Since ‘asabiyya involves the transfer of loyalties, should our loyalties be similarly

transferred to the nation-state? The answer is that ‘asabiyya is a natural phenomenon. The

nation-state, on the other hand, is something that has been imposed on the Ummah from the top

by the West. In fact, the phenomenon of the nation state is the cause of disunity amongst the

Ummah, because it has replaced religion with race as the source of brotherhood. How

colonialism brought about the concept of the nation-state and changed the structure of Islamic

law completely is dealt with later.

25

Since we have dealt with some of the preliminary problems related to having an Islamic form of

government in the modern world, we can now focus our attention on the primary goal of out

thesis: The Islamic state as a legal person.

3 The State and Traditional Islamic Law

3.1 The Classification of Rights in Islam

A discussion on legal personality is meaningless without a discussion on the distribution of rights

with in the framework of Islamic law. Before we begin discussing the state’s legal personality in

Islam, it is important to set forth how Islamic law assigns rights. In fact, the entire structure of

Islamic law and its classification are based on the distribution of rights.97 The following

classification is based on Professor Nyazee’s work.

Rights in Islamic law are of the following kinds:

1. The right of Allah (haqq Allah)

2. The right of the individual (haqq al-‘abd)

3. The right of Allah mixed with the right of the individual, which are further divided in to

two categories:

• Where the right of Allah is predominant.

• Where the right of the individual is predominant.

97

Imran Ahsan Khan Nyazee, Outlines of Islamic Jurisprudence, 3d. ed. (Rawalpinidi, Pakistan , Federal Law House, 2005) at 103

26

4. The collective rights of the individuals or of the Muslim community, also known as the

right of the ruler (haqq al-sultan), or the right of the state (haqq al-sultanah).98The right

of Allah is independent of the right of the state. 99

These rights affect the legal rules laid down by Islamic law. They are subdivided as follows:

1. Rules that relate to the right of Allah are of eight kinds:

• Pure worship: These include belief in Allah, prayer, zakah (poor-

due), fasting, pilgrimage to Makkah also known as hajj and jihad.

• Pure punishments: These are the hudud punishments. Their basic

function is deterrence.

• Imperfect punishments: An example is that a murderer is not

allowed to inherit from his victim.

• Those vacillating between worship and a penalty: These are

primarily expiation (kaffarat) made for different reasons.

• Worship in which there is an element of financial liability: An

example is sadaqat al-fitr, a payment made before ‘Id al-fitr following Ramadan.

• Financial liability in which there is an element of worship: This

includes ‘ushr, a ten percent charge levied on the produce of land.

• Financial liability in which there is an element of punishment: The

example for this is the kharaj tax.

98

Imran Ahsan Khan Nyazee, Outlines of Islamic Jurisprudence, 3d. ed (Rawalpinidi, Pakistan , Federal Law House, 2005) at 104

99 Ibid.

27

• Those that exist independently. These are of three types: Those

initially laid down as a rule; those imposed as an addition to a rule; and those that

are associated with the initial rule. Examples include the khums levied on cattle,

minerals and treasures-troves.

2. Rules in which the right of Allah is mixed with the right of the individual, but

the right of Allah is predominant. This includes the hadd penalty of qadhf. The Shafi’is

consider it a pure right of the individual.

3. Rules in which the right of Allah is mixed with the right of the individual but

the right of Allah is predominant. The primary example for this category is the qisas

punishment, that is, retaliation for injuries caused to the human body or culpable

homicide that amounts to murder.

4. Rules relating to the right of the individual alone. In the words of Professor

Nyazee, “ This category includes almost everything is not included in the above

categories and is beyond reckoning. The important point to consider is that al-Sarakhsi

does not mention ta’zir or discretionary penalties. The reason is that the discretionary

penalties fall within the category of the rights of the individuals, when these are

considered collectively, that is, they are the right of the state. The Hanafi jurist al-Kasani

clearly states that all ta’zir relates to the right of the individual.” 100

This classification is related to obligation creating rules (hukm taklifi). The jurists did not

mention the right of the ruler in this classification because they left it to the rulers to sub- classify

their rights. Acts related to the right of Allah are distinct from the right of the ruler. In fact, even

the ruler or state owes rights to Allah.101

100

Imran Ahsan Khan Nyazee, Outlines of Islamic Jurisprudence, 3d. ed.(Rawalpinidi, Pakistan , Federal Law House, 2005) at 107 101

Ibid at 107

28

The distinction between the right of Allah and the right of man has some other consequences as

well in the practical application of Islamic law in courts. If the judge (qadi) makes an erroneous

judgment and the right violated is that of Allah, the damages are paid from the public treasury

(bayt al-mal). This is because the qadi acts on behalf of the Ummah, who are collectively

responsible for the damages caused by his judgment. 102

On the other hand, if a right of man is violated by an erroneous judgment and the damage is

replaceable, the beneficiary has to make good the damage. 103He does so by restoration of the

claim or restitution of the object. If the damage is irreplaceable, the beneficiary is to make a

compensatory payment to the victim. The qadi may not be called to account for the damage in

any of these cases. 104

3.2 The Concepts of Capacity and Legal Personality in Islamic Law

The question of personality is linked to that of capacity in Islamic law. Capacity is called ahliyah

in fiqh. Ahliyah is defined as “the ability or fitness to acquire rights and exercise them and to

accept duties and perform them.”105 There are two types of capacity. They are called ahliyat al-

wujub, the capacity for acquisition (of rights) and ahliyat al-ada’, the capacity for execution. 106

102

Ulrich Rebstock “A Qadi’s Error” (1999) 6:1 Islamic law and society 1, at 24 103

al-Sarakhsi, Al-Mabsut, v.11 at 85 م ������� ������ ����� ع وا������� ، ا������� �� ��� �����ل ������� �ا �������������� ه )"�������ن } +����� أ(�������! )�'�������� &%����ح �#�"��������! و�������� { ������������ �ا)/������. �#��� � �������8ؤ> آ���ن إن ذ����: +�������9م ���� ا�'/7��������8 أ(6 ا������� ��������������5 إذا و�"������ ، )�������2 )�'�������� &�ن ������� �1ه�ا ا�������0ع أ >�����?+ ا� +?�����< آ���ن وإن ، دا�����������5 ������������� ���'��������8( 7�����( A���������+ ا�'���ل ، <http://islamport.com/d/2/hnf/1/12/512.html?zoom_highlightsub=%22%C8%ED%CA+%C7%E1%E3%C7%E1%22+%DE%D5%C7%D5> 104

Ibid 105

Imran Ahsan Khan Nyazee , Islamic Law Of Business Organization: Corporations (Islamabad, Pakistan, Islamic Research Institute Press, 1998)

106 Imran Ahsan Khan Nyazee , Islamic Law Of Business Organization: Corporations (Islamabad, Pakistan,

Islamic Research Institute Press, 1998)

29

Ahliyat al-wujub is the ability of a human being to acquire rights and obligations. Related to this

is the concept of dhimma, which is a sort of imaginary container that holds both ahliyat al-wujub

and ahliyat al-ada’. It is the balance sheet of a person that shows his assets and liabilities in

terms of his rights and obligations.107 The term dhimma corresponds to the term personality in

law. It is the “trust” that God offered to the mountains but they refused. It was man who accepted

it.108 Thus in its literal meaning it is a covenant and in its technical meaning it is a “legal

attribute by virtue of which a human being becomes eligible for acquiring rights and

obligations.” 109

Dhimma or personality grant ahliyat al-wujub in Islamic law and they require ‘aql (intellect) for

the grant of ahliyat al-ada’ (capacity for execution).110 According to Imam Al-Sarakhsi capacity

is associated with dhimmah and that is something specific to a human being.111 Imam Al-Ghazali

also said that even if intellect is given to an animal, there could be no obligation for or against it

because obligation is based on the attribute of dhimma. This is something that an animal does not

possess.112 The concept is explained as follows:

“The intellect is merely to understand the khitab, while obligation is based upon an attribute that

is called dhimmah (personality), so much so that if the existence of ‘aql is assumed without this

attribute, like the mounting of intellect on to an animal other than a human, no obligation for

against it can be established.”

107

Ibid 108

Ibid 109

Ibid. at 91

110 Ibid. at 92

111 Ibid. at 93

112 Ibid. at 93

30

Based on the above passage, Professor Nyazee concludes that the jurists are acknowledging

“some kind of unsound dhimmah” for animals other than humans, even if they are not willing to

assign complete workable capacity to them.113

The question for us is that how do we then assign legal personality to a non-human, such as the

state, under Islamic law? Professor Nyazee suggests a new principle based on traditional Islamic

law. The old principle stated, “A sound dhimmah is required for the performance of duties

expected of a Muslim, and these duties can be understood and performed by human beings alone,

because they also pertain to the hereafter.” On the other hand the new principle states, “As long

as purely religious duties are not expected of a person or organization, a limited dhimmah may

be assigned to a non-human with no liability for understanding the khitab of ‘ibadat, but only

when some form of human intelligence is present to direct the acts of the artificial personality.”

It was for this reason, as we shall examine further, that Muslim jurists did not attribute legal

personality to institutions such as the waqf (religious endowment) and the bayt al-mal (public

treasury), that is, because they are created for religious purposes.

The question that arises for us is that, what about the Islamic state? In Islamic law, the ruler is

responsible for the administration of some purely religious duties. Some of these are directly

related to the rights of Allah. These are rights that cannot be altered, suspended or pardoned by

the ruler, because that is outside his jurisdiction. His function is merely to establish and execute

them in the required manner. He is responsible to Allah for them in his personal capacity. Some

of these are acts of pure worship, such as the collection and distribution of zakah (poor-due) and

the waging of jihad. Others include the execution of hudud penalties, the levying of ‘ushr, khums

and kharaj taxes and the administration of certain imperfect punishments, such as ensuring that

the murderer does not inherit from his victim.

113

Ibid.

31

Furthermore the ruler is responsible for performing the furud kifaya (communal obligations to

Allah) of the Muslim community as its trustee. If a ruler is not performing the responsibility

entrusted to him, or cannot be made effectively liable for performing religious obligations of the

entire community, then does this mean that the entire community is sinful? Consequently, if a

legal person cannot be liable for religious duties, how can the idea of an Islamic state co-exist

with the idea of the state with fictitious personality? Who do we assign the responsibility and the

corresponding liability of not administering the rights of Allah? Furthermore, how do we do this

in a manner that conforms to the principles of Islamic law?

Additionally, Islamic law assigns rights to individuals that cannot be suspended or taken over by

the state, such as the right of the heirs to punish or pardon the murderer under the qisas penalties.

If the state is the sole source of law, it can tamper or change it as it pleases without any liability.

Another problem that arises is that the modern state is considered sovereign in its own right. It

was created specifically to counter any supranational authority, in particular the religious

authority of the Pope in Christian Europe.114 This was done by agreeing to respect the principle

of territorial integrity and by encouraging nationalism whereby legitimate states corresponded to

nations, that is, groups of people that were united by way of language and culture. Therefore the

purpose of the modern state seems to be anything but religion. How can we expect such an

institution to be adhering to any religious authority in a manner that does not tamper with the

structure of Islamic law? These issues will be taken up after discussing the waqf and the bayt al-

mal, Inshallah.

114

Eric Allen Engle, “The Transformation of the International Legal System: The Post-Westphalian Legal Order”(2004) 23:23,Quinnipiac L.Rev,23. <http://ssrn.com/abstract=1020475>

32

3.2.1 The Waqf: Trust the State?

A waqf is a charitable trust or endowment. The argument in favour of artificial personality for

the waqf is that it can own property. Under traditional Islamic law, the waqf does not hold

collective property. This is because the waqf is the property itself. According to Imam Abu

Hanifa the waqf is the suspension of property with in the ownership of the person making it. This

is called habs al-‘ayn ‘ala milk al-waqif in Arabic. 115His disciples call it a suspension of the

property by assigning the ownership to Allah. In both cases, the property cannot be sold or gifted

or inherited because of its suspension. 116

Since the waqf exists with the existence of the property, it ceases to exist when a natural force

destroys the property. Legal personality on the other hand is independent of the property itself,

whether it is a legal person that owns it or it is a corpus. A waqf seems similar to a corporation

because it can outlive its founder. However, it is not a self-governing legal entity because it lacks

the required capacity. Its administrator is required to follow the founder’s directives and because

of this the waqf cannot turn into a corporate entity. 117

115

Hashia Rad al-Muhtar v.6. 302

116Imran Ahsan Khan Nyazee , Islamic Law Of Business Organization Corporations (Islamabad, Pakistan, Islamic

Research Institute Press,1998) at 97

117 Timur Kuran “The Absence of the Corporation in Islamic Law: Origins and Persistence”(2005) 53:4 785

<http://www.jstor.org/stable/30038724>

33

The waqf was actually one of the institutions fundamentally responsible for delaying the

acceptance of the corporate form in the Muslim world.118 The social services offered by the waqf

had large setup costs, for example the construction of a congregational mosque and in some

cases a madrasah (school) and the institution itself was expected to last indefinitely. Therefore

the resources that might have otherwise stimulated a movement to incorporate were absorbed by

the waqf. Thus, a waqf is not a legal person and it has no capacity in Islamic law. The same rules

apply for any argument favoring the personality of the mosque, because the mosque is also a

waqf.

The trust was an important element in discussions about the state’s legal personality in common

law. However, this was so because of completely different reasons. One of the main concerns

about accepting the state as a legal person in western jurisprudence was that this would mean that

the state would the institution granting legal validity to collectives and communities. It was

feared that the state might become too powerful and take away validity from these organizations

at will. There was a fear that this would infringe the rights of individuals. In the views of some

scholars the corporate form was actually developed in the west to avoid problems like these.

Maitland and the British pluralists viewed the trust, a unique invention of common law at least in

Western jurisprudence, as an alternative to the corporate form.119 In his view corporate

personality was not the only device that could protect and control associations. The trust was a

rival method. This was because it enabled moral persons to create a legal identity of their own

and to claim the recognition that should be given to them. At the same time they had to ask for

the permission of no one except their members. 120The trust was thus a device to protect

associations from their “natural predator” that is, the sovereign. 121

118

ibid 119 Frederic William Maitland, The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University

Press, 1911). 3 Vols. Vol. 3. Chapter: TRUST AND CORPORATION 1

Accessed from http://oll.libertyfund.org/title/873/70330 on 2011-09-16 120

Roger Scruton & John Finnis “Corporate Persons”(1989) 63:0 Proceedings of the Aristotelian Society, Supplementary Volumes 239 < http://www.jstor.org/pss/4106920> 121

Ibid. at 260

34

The concerns regarding the freedom of association were rooted in the history of Europe. The

Pope was the most powerful authority and in the time of Pope Innocent IV ecclesiastical bodies

were directed to resolve the question of whether certain groups could be excommunicated.122

The situation in pre-modern Muslim lands was quite the opposite.123 Rulers were concerned with

the unity of the Ummah and wanted to avert factionalism. Due to this they were willing to grant

de facto recognition to guilds and religious minorities, even though this was done on a selective

and limited basis. There were no great obstacles to the treatment of traders as groups.

Furthermore, the concept of limited liability, as we shall explore later on, already existed in

Islamic law. All these factors led to the concept of corporate personality entering Muslim lands

much later- there was no need to develop it.

3.2.2 Bayt al-Mal: Ruler as Agent of the Ummah

An analysis of the state’s legal personality involves discussing the personality of collectives. As

far as the personality of collective property is concerned, the most prominent example is that of

122

Janet Mclean “Review: Personality and Public Law Doctrine” (1999), 49:1, U.T.L.J. 123 at 29. There was a struggle between church and empire. The main issue was whether groups could have their own will and intention, and therefore moral personality. Two theories arose out of this, the fiction and concession theories. According to the fiction theory, groups were allowed to hold property and to contract. However, they were not allowed to undertake moral obligations. According to the concession theory only the state could create and legitimate such bodies. All associations were considered conspiracies except if they derived their powers from the state. Power was delegated to these associations from above and everything was subject to royal charters and licenses. This theory served the claims of emerging nation-states against rivals such as religious organizations. There was a fear in Europe that the state would become too powerful and would not allow individuals to form associations. 123

Timur Kuran “The Absence of the Corporation in Islamic Law: Origins and Persistence”(2005) 53:4 785 <http://www.jstor.org/stable/30038724>

35

the Bayt al-Mal, the public treasury in Islamic law. The bayt al-mal, according to Islamic law, is

a co-ownership (sharikat al-milk) of the members of the Muslim community (the Ummah). The

ruler administers it as the agent of Ummah. 124

Those who state that the bayt al-mal is a legal person argue that it has financial independence

and legal rights and it is independent in its legal capacity from the ruler and its administrators.125

Also, they read statements in classical legal texts like “the treasury is the heir of one who dies

intestate,” to mean that the bayt al-mal has legal personality.

It is important to note that collective property does not equal to legal personality. According to

the accounting or mercantile notion of the firm, the fact that the accountant treats a partnership as

a single entity for recording debit and credit entries does not mean that the partnership is a legal

person. Accountants used to assign partnerships an imaginary personality-in the terms of Islamic

law, an imaginary dhimmah- to the firm. This was before the modern corporation was born.126

The bayt al-mal is only a corpus.127 It is a fund with no personality of its own. It is managed, or

held, by the ruler on behalf of the Ummah, who are all co-owners in the property. There is a

relationship of agency between each member of the Ummah and the imam. This relationship is

124

Imran Ahsan Khan Nyazee , Islamic Law Of Business Organization Corporations (Islamabad, Pakistan, Islamic Research Institute Press, 1998) at 101 125

Mahmoud M. Sanusi “The Concept Of Artificial Legal Entity And Limited Liability in Islamic Law” (2009) Malayan Law Journal 2009:3 LVIII-LXIV 126

Imran Ahsan Khan Nyazee , Islamic Law Of Business Organization Corporations (Islamabad, Pakistan, Islamic Research Institute Press, 1998) at 70. On a side note, it can also be said that the existence of a group or association of people does not mean that legal personality exists. Hobbes, while maintaining that the state was in his view a universitas, a corporation that collectively formed a single entity itself capable of action, also recognized the existence of a societas. This was a partnership the basis of which was a shared agreement and it was no more than the sum of its members. It had no separate identity. (Mclean, Runciman) 127

Imran Ahsan Khan Nyazee , Islamic Law Of Business Organization Corporations (Islamabad, Pakistan, Islamic Research Institute Press, 1998) at 101

36

established through the contract of bay’ah and due to this he is held personally responsible and

not protected with the cover of a corporation sole.

Due to the fact that the bayt al-mal is a mal ‘ama or mal mushtarak the fuqaha waive the hadd

penalty in case a member of the Ummah steals something from it. 128

Since the thief is considered a part owner of the bayt al-mal, or at least a shubh (mistake/doubt)

of such an ownership is created the hadd penalty of cutting off his hand cannot be imposed. If the

bayt al- mal was a legal person, or had a specified owner, there would have been no shubh.

Similarly, since the bayt al-mal is the collective property of the Muslims, it is used to pay the

expenses of the Laqit (Foundling).129 In Hanafi fiqh if the murderer is one who does not have an

128 Take for example, the following passage from Imam Al-Sarakhsi’s Al-Mabsut:

وK�����/L M ا������Jرق ����� +�����A ا�'�����ل �����Gا آ�����ن أو �F����5ا ؛ �ن ������ )������ ������آ. أو �����D5. ������آ. ، )����Cن �����ل +�����A ا�'�����ل �����ل ) �����ل )

F�����/+ �������( >�����?ا� ������� A�����5NL ج������PGإذا ا �������C( ، !هF�����Gأ ر �����P&�G ، و)����7 ا�"�����Pب روي ������ �#����7 +����� أ+����Q������R 7 ر�����7 ا�'�����J#'�� ، وه�����

�������P :������ ا� �%����� أ������ أ�����7 +�&����2 ����������U Fق ����� ا�'F����( !����%9رأ �%����� ا�?����F و������ل إن ������ )������ ��������5 ، و������� ������ �6����Dا ا�'�����ل

������� :������� M ل������ .�������J+ K������/L M 6ا�����Dا�'�������: ، و� �� ا������Jرق ���������. ا�'#�����: �#���������#� K�����/ب ا� وو&����

Al-Sarakhsi Al-Mabsut vol. 11 428

<http://islamport.com/d/2/hnf/1/12/515.html?zoom_highlightsub=%22%C8%ED%CA+%C7%E

1%E3%C7%E1%22+%DE%D5%C7%D5 > 129

Al-Kasani, Bada’I al-Sana’I fi Tartib al-Sharai’ kitab al-Laqit, 14/70 <http://islamport.com/d/2/hnf/1/17/969.html?zoom_highlightsub=%C8%ED%CA+%C7%E1%E3%C7%E1+%D6%E3%C7%E4>

37

‘aqilah, such as a foundling or a dhimmi (non-Muslim citizen of the Islamic state) who converted

to Islam, following the previous principle, his ‘aqilah is the bayt al-mal in zahir ar-riwayah. This

is so that the Muslim community can help these individuals and the bayt al-mal is their property

and that is his ‘aqilah. Additionally, if this person were to die, his inheritance would go to the

bayt al-mal, and if he had any payments or fines due, they would also be paid from the bayt al-

mal, if he does not have any inheritor.130 If the bayt al-mal were a legal person, these individuals

would have no right in it. The personality or dhimma involved in these transactions is that of the

ruler, who is the agent of the Ummah. Note that Imam Abu Hanifa’s ruling is that the blood

money should be paid from the offender’s property.131

Rad al-muhtar mentions the responsibility of the Jama’at al-Muslimeen (Muslim community) to

help these people.132 Does this mean that the Ummah is a corporation aggregate? To clarify what

we mean, there are several instances in fiqh literature where the Muslim community is

mentioned as a single entity. Take for example, the concept of Dhimmah al-Muslimeen. The

Prophet (PBUH) said:

� +�����D أد������ه! } �����JL ةF����Gوا ��'#����J'ا� .���� { ذ 133

The term refers to the conference of aman (protection) to a non-Muslim by a Muslim. 134In case

of brigandage where the victim is a Musta’min, the offenders are made liable by way of Ta’zir

130

Rad al-muhtar. (28/434) <http://islamport.com/d/2/hnf/1/25/1547.html?zoom_highlightsub=%E5%CF%ED%C9+%22%C8%ED%CA+%C7%E1%E3%C7%E1%22> 131

Badai al-Sanai’ (6/307) <http://islamport.com/d/2/hnf/1/16/861.html?zoom_highlightsub=%22%C8%ED%CA+%C7%E1%E3%C7%E1%22+%DE%D5%C7%D5> 132

Rad al-Muhtar (28/435)

133 Taby’in al Haqaiq Sharh Kanz al-Daqa’iq. (9/291)

<http://islamport.com/d/2/hnf/1/18/1069.html?zoom_highlightsub=%22%D0%E3%C9+%C7%E1%E3%D3%E1%E3%ED%E4%22>

134 Al-Sarakhsi, al-Mabsut (12/302)

<http://islamport.com/d/2/hnf/1/12/521.html?zoom_highlightsub=%22%D0%E3%C9+%C7%E1%E3%D3%E1%E3%ED%E4%22>

38

and imprisonment. This is because they violated the dhimmah al-muslimeen.135 Essentially this is

a contract of protection between Muslims and non-Muslims. It does not imply legal personality

for the Ummah. Each and every member of the Ummah is responsible for taking care of non-

Muslims who seek their protection, or who have contracted peace with the Ummah, unless

giving protection to a non-Muslim would be injurious to the Muslims. The Muslims delegate

their affair to the ruler (imam) as their agent, and he is responsible to administer the contract in a

way that the rights of non-Muslims who have a truce with Muslims, as well as those of Muslims

are not harmed in any way.

The question arises; does Islamic law provide any immunity for the ruler? If there were no

immunities rulers would be afraid to undertake public interest measures. By way of example,

what happens when a ruler, in the course of exercising his duty lawfully sentences someone to a

hadd or ta’zir punishment and the offender dies. Take the case of someone whose hand the ruler

orders to be amputated because he has committed theft. If the person dies due to his wounds, this

would be a graver punishment than was intended. Is the ruler liable for the injury caused?

According to the Hanafi school of thought, neither the imam is liable for the damages, nor will

they be paid from the bayt al-mal. This is because the act of ordering the amputation was a

permissible/ lawful act. Imam Abu Hanifa himself however held that the Imam would be liable

because his right was to exact the punishment of amputating the hand, but he instead killed the

offender. Analogy would demand Qisas (retaliation) from the imam, but due to the presence of

shubh (mistake/doubt) the penalty is warded off and the imam is held liable to pay the diyyah.

However, the diyyah cannot be taken from him because of necessity. This is because if daman

(compensation) were made obligatory on the rulers, they would refrain from establishing the

hudud penalties due to the fear of having to pay compensation. 136

135

Fath al-Qadeer. (12/346) <http://islamport.com/d/2/hnf/1/27/1695.html?zoom_highlightsub=%22%D0%E3%C9+%C7%E1%E3%D3%E1%E3%ED%E4%22> 136

al-Kasani Badai al-Sanai vol.17,39

39

In the Shafi’i school of thought however if the ruler punishes someone for a lawful Ta’zir and

the offender, diyyah becomes obligatory and is paid from the bayt al-mal. This is because the

Ta’zir was to discipline the offender and the punishment was exacted for the benefit of the

Muslims. The bayt al-mal is the collective property of the Muslims and therefore the

compensation is paid from it. 137

It is acceptable for the ruler and the judge’s salaries to be paid from the bayt al-mal. This is

because they work for the Muslim Ummah and they have freed themselves exclusively to work

for them and so their compensation is also from the collective property of the Muslims. Gifts to

the judge are also given to the bayt al-mal. If the judge receives a gift that is not permissible for

him to accept, it is obligatory to return it to its sender138. If the sender cannot be found, the gift is

transferred to the bayt al-mal and it is given the ruling of a luqta (found item).139

All the cases that we have mentioned demonstrate that the bayt al-mal is not a legal person. If the

bayt al-mal were considered a legal person, it would not be possible to expend its resources in

the way that the fuqaha have outlined. The bayt al-mal is the collective property of the Muslims

and its resources are used for the collective benefit of the Muslims. Furthermore, the rulers and

government servants are servants of the Ummah, and it is for this reason alone that they are

<http://islamport.com/d/2/hnf/1/17/993.html?zoom_highlightsub=%22%C8%ED%CA+%C7%E1%E3%C7%E1%22+%DE%D5%C7%D5> 137

Akmal al-Din al-Babarti al-Inayah sharh al-Hidaya. Vol.7,311 <http://islamport.com/d/2/hnf/1/8/356.html?zoom_highlightsub=%22%C8%ED%CA+%C7%E1%E3%C7%E1%22+%CA%DA%D2%ED%D1> 138

Ibn Abedin Sahmi Hashia rad al-muhtar vol.5,513 <http://islamport.com/d/2/hnf/1/23/1261.html?zoom_highlightsub=%E5%CF%ED%C9+%22%C8%ED%CA+%C7%E1%E3%C7%E1%22> 139

Ibn Nujaym al-Misri Bahr al-Raiq Sharh Kanz al-Daqaiq vol.17,404 <http://islamport.com/d/2/hnf/1/3/152.html?zoom_highlightsub=%E5%CF%ED%C9+%22%C8%ED%CA+%C7%E1%E3%C7%E1%22>

40

allowed to be paid compensation from the bayt al-mal, and damages for any lawful exercise of

power by them are paid from it.

4 The Impact of Modern Institutions on Islamic Law

It has been argued in the past that the concept of sovereignty was a revolutionary one in the

Muslim world. With the rise of the corporate nation-state also came the idea of popular

sovereignty. The people were now the source of all power, and the state gained legitimacy from

their will or consent.140 The ruler’s power was limited through that of the people, but was the

power of the people absolute? If all the people want to change a law democratically, would that

be morally permissible? For example, if an entire population wants to implement a law that goes

against the fundamental rules of the Shariah, would that be permissible? Furthermore, does a

majority decision decide the content of morality? Under these circumstances, is the Shariah just a

“sort of natural-law code”141 that restricts the scope of majority decisions?

To state that the transition from an Islamic empire to a nation-state was revolutionary142 would

be an understatement. This is because this transition changed the entire structure of Islamic law.

The empire gained its legitimacy from divine law; the ulama (scholars) led it, and the sultan as

140

Nathan Tarcov “Popular Sovereignty (in Democratic Political Theory” (1986) Leonard Levy, ed., Encyclopedia of the American Constitution , vol 3, p. 1426, 1426 141

Gerrit Steunebrink “Sovereignty, the nation state, and Islam”(2008) 15:1 Ethical Perspectives: Journal of the European Ethics Network 7 at 22. 142

Gerrit Steunebrink “Sovereignty, the nation state, and Islam”(2008) 15:1 Ethical Perspectives: Journal of the European Ethics Network 7

41

caliph protected it.143 When the modern state was created, a national people set up its law and the

ruler gained his legitimacy from the constitution. 144 Thus, the modern concept of sovereignty

brings about a fundamental change in the Islamic world. Political authority becomes superior to

religious authority. 145 In this situation, the state held on to the primacy of legislation.

Since the idea of sovereignty was revolutionary, even the idea of Islam as state religion seemed

strange. Only individuals can have a religion, not the state. Under the Islamic empire this meant

that the sultan/ruler was a personally guaranteed that Islamic law would be applied.146 The

empire did not officially recognize Islam as the state religion. This was not because the law

applied was not Islamic. Rather, it did so because it was not a modern state. The author

hypothesizes that this may also be due to the fact that Islamic law was not familiar with the

concept of corporate personality.147 Only the head of the state had rights and duties since he was

a natural person, and not the state.148

In a section titled “Sharia no longer exists”, Stuenebrink argues that the Shariah as a system of

law ceased to exist with the birth of the modern state and emergence of the concept of

sovereignty. The reformation of government changed the structure of Islamic law itself. The

Shariah was an institution driven by religious scholars. It set limits on the profane authority of

rulers who could only develop laws with in the domain not covered by the Shariah. Thus, it

served as a system of checks and balances.

143

Ibid. at 23. 144

Ibid. 145

Ibid. at 33. 146

Ibid. at 23. 147

Ibid. 148

Ibid.

42

Is it possible to reconcile between submission to the will of Allah and the concept of a modern

state? The modern state is a legal person, an entity that cannot be given any religious duties.

Furthermore, since it is possible in the modern state to dispense with rules of law if the majority

of the people decide so, how do we ensure, or how do we create a system in which the principles

of Islamic law cannot be violated? Is it the constitution of the modern state that provides the

grund norm that validates all laws, or is it the Quran? 149 If the Shariah’s aim is to provide laws

that are in the interest of Man, does this mean that human beings have the right to make laws that

they deem to be in their interest?150

Furthermore, if in the pre-modern Islamic empire there was no constitution that gave the ruler

legitimacy, which institution did? Who was responsible for ensuring that the Shariah was

enforced and that the ruler was administering his government according to the dictates of Allah

and His Prophet (PBUH)? Since the concept is at its very core related to that of ijtihad,

understanding how law was declared valid in the past requires an explanation of Hart’s rule of

recognition.151 According to him, the rule of recognition is one that provides the criteria by

which we judge the validity of other rules.152 Law is not made valid merely by the external

statement of the parliament that it has been enacted; rather the actors within the system must

internalize it.153 The answer lies in the development of the doctrinal schools, that is, the

Madhahib (sing. Madhhab).154 The followers of the school internalize the law by having faith in

one school and its founders.155 A central feature of the doctrinal school was the creation of an

149

Imran Ahsan Khan Nyazee, Theories Of Islamic Law: The methodology of Ijtihad (Pakistan, Islamabad, Islamic Research Institute Press, 1994) at 38 150

Ibid. 151

Ibid. at 296 152

Ibid. 153

Ibid. at 298 154

Ibid. See also: Wael Hallaq, Introduction to Islamic Law (U.S.A, University press Cambridge 2009) at 34 155

Imran Ahsan Khan Nyazee, Theories Of Islamic Law: The methodology of Ijtihad (Pakistan, Islamabad, Islamic Research Institute Press, 1994) at 298

43

axis of authority around which an entire methodology of law was constructed.156 What follows in

this section is primarily Professor Hallaq’s description of the system.

The question of how these doctrinal schools gained authority rests on why did they come into

being at all? The formation of the schools started taking shape in the form of study circles in the

last decades of the seventh century, in which pious scholars debated religious issues and taught

students. The production of legal doctrine began in these study circles exclusively. Therefore,

legal authority was knowledge-based rather than political, social or even religious. This

epistemic authority was the defining feature of Islamic law. “A masterly knowledge of the law

was the sole criterion in deciding where legal authority resided; and it resided with the scholars,

not with the political rulers or any other source.” If a Caliph did participate in legal life actively,

it was because of his recognized personal knowledge of the law, rather than his political office or

military power. Therefore, legal authority in Islam was personal and private.157 It resided in the

persons of the individual jurists, whether they were laymen or caliphs. This competence in

religious legal knowledge was known as ijtihad.158

The concept of ijtihad gave Islamic law one of its unique features. There was, for every possible

event or case, and for every specific set of facts anywhere between two and a dozen opinions, if

not more. A different jurist held each of them. No single legal stipulation had a monopoly, unlike

the situation in the modern state where only one legal ruling applies. Thus, legal pluralism is a

characteristic of Islamic law. This is so not only because it acknowledges local custom and takes

it into account, but also because it offers a wide range of opinions on one and the same set of

facts. This gave Islamic law two of its fundamental features. One was flexibility and adaptability

to different regions and societies. The other was an ability to change and develop over time, first

156

Wael Hallaq, Introduction to Islamic Law, (U.S.A, University press Cambridge 2009) at 34 157

Ibid at 34 158

Ibid

44

by opting for opinions that were more suitable than others to a particular circumstance and

second, when the need arose, by creating new opinions. 159

Under Islamic rule, therefore, legal authority did not reside in the government or ruler, and this

was the primary reason for the rise of the doctrinal school. It was transferred to the individual

jurists who were vigorous in their own study circles.160 In other imperial civilizations law as a

legislated system was often “state”-based. However, in the Islamic world ruling powers had

nothing to do with the production and promulgation of law or legal knowledge until the advent of

modernity. Therefore there was a need to secure law in a system of authority that was not

political, more so since the ruling political institutions and their objectives were considered

highly suspect. Since the study circles consisted of nothing more than groups of legal scholars

and their students, they did not have the capacity to produce a unified legal doctrine that would

provide an axis of legal authority. This was because even though each region had its own

pronounced, practice-based legal system there still existed in it, a great variety of study circles in

each. Within each such circle scholars disagreed on a wide range of opinions.161

The development of personal schools was the primary step towards providing an axis of legal

authority. This was because the teaching and application in courts and fatwas of a single, unified

doctrine of a leading jurist who was the founder of a school allowed for some doctrinal unity.

However, an axis of authority was still needed because the great number of personal schools was

only slightly more effective than the multiple study circles. These schools were still too

numerous, probably being more than two dozen in number and were too divergent doctrinally.

Additionally, the leader’s doctrine was not always applied to the core since it was subjected to

159

Ibid at 27 160

Ibid at 35 161

Ibid at 36

45

the discretion and sometimes even reformulation of the judge applying it.162 Therefore juristic

and doctrinal loyalty was still needed.163

By the eighth century, the jurists had not only formulated the law but also administered it in the

name of the ruling dynasty.164 The community of jurists was basically juristically independent

and it had the capacity to steer a course that would fulfill its mission in a manner that it saw fit. It

also served as the ruler’s link to the masses and helped him in his bid for legitimacy. “As long as

the ruler benefited from this legitimizing agency, the legal community benefited from financial

support and an easily acquired independence.”165

In such circumstances, perhaps rallying around a single juristic doctrine was the only way for a

personal school to attract loyal followers and consequently to attract political or financial

support. This support included not only financial favours but also prestigious judicial

appointments that ensured great salaries as well as social and political influence. Considerations

such as these explain why scholars rallied around outstanding figures that became absolute

mujtahid-imams or master-jurists so that their personal schools became doctrinal entities. This

was a way to secure law in a source of authority that was an alternative to the authority of the

body politic. In other words, this construction came to fill a gap that Muslim rulers had left

untouched. Consequently, in contrast to other cultures where it was the ruling dynasty that

promulgated the law and enforced it as well as constituted the locus of legal power, under Islam

the doctrinal legal school produced the law and provided its axis of authority. In short, “juristic

doctrinal authority resided in the collective, juristic doctrinal enterprise of the school, not in the

ruler or in the doctrine of a single jurist.”166

162

Ibid 163

ibid 164

ibid 165

ibid 166

Ibid at 37

46

The doctrinal legal schools are a fundamental feature of the Shariah. After their formation, no

jurist could operate independently of them. They continued to function this way until they were

dissolved by modern reforms.167

While the ruling class did have some influence on legal scholarship, especially due the fact that it

financed madrasas that were created as waqfs, the content of the law and its application was

never compromised by any political accommodation. 168 “It was the the ruler that had to bow

down to the dictates of the Shari’a and its representatives in governing the populace. As a moral

force, and without the coercive tools of a state, the law stood supreme for over a

millennium.”169The caliph did appoint and remove judges and even defined the limits of their

jurisdiction. However, he could not influence the content of the law and how it was to be

applied.170

The early caliphs viewed themselves as being subject to the law as much as any one else, and

they acted with in its framework.171 With the dawn of the second century of Islam, differences

started arising between the ruling elite and the legal scholars. This was because the legal

specialists insisted that human conduct must be driven with piety, which the ruling elite

increasingly came to lack with the passage of time, as they submitted themselves to a life of

luxury. Due to this there were various instances in Islamic history where legal specialists refused

to work for the government as judges or otherwise, because they saw the ruling elite’s source of

income as suspect. The legist’s loyalties were not to the government but rather to the Shariah and

the civil population. However, the ruling class needed the legal scholars, and the legal scholars

167

Ibid at 37 168

Ibid at 38 169

Ibid 170

Ibid at 8 171

ibid

47

needed it. The rulers needed legitimization, which only the legal scholars could provide, and the

legal scholars needed financial resources to continue their work, which only the ruling class

could provide, which is why some jurists did accept judgeship. Furthermore, the jurists were the

rulers’ link to the masses, since they were one of them. They interceded on behalf of the non-

elite and also represented the ideal of piety. The later caliphs came to grips with the reality that

shear force would not grant them the legitimacy they were striving to attain. It lay with the legal

scholars who were the locus not only of legitimacy, but also religious and moral authority.172

Hence, both learned to cooperate with each other, and to negotiate their relationship when there

was a conflict.173 However, whenever there was conflict between the ruling class and the

interests of the Shariah, it was the Shariah that reigned supreme. The points of friction that arose

from the elite were not directed to the law itself, rather to its application by the legal specialists.

However, since the caliph’s office was regarded as upholding the sacred law and its highest

standards of justice, the caliphs themselves felt the responsibility to act according to these

expectations. “Inasmuch as the law in and of itself possessed authority, the caliph and his office

were seen not only as another locus of the holy law, but also as its guarantor and enforcer. As a

rule, the caliphs and their provincial representatives upheld court decisions and normally did not

intervene in the judicial process.”174

The Islamic legal system and its institutions continued as such until the advent of colonialism

and the rise of the nation-state. After this, the institutions that were so fundamental to Islamic

law were dismantled. Instead, the legal system that replaced it was structured to serve the

interests of the colonialists.175 These interests were mainly economic. In India, for example, the

British structured the legal system in a way that would accommodate an open economic market.

The legal system was the tool that established and set the tone of economic domination.

Furthermore, the British wanted to reduce the economic costs of controlling the country. The

172

Ibid at 43 173

Ibid 174

Ibid at 44 175

Ibid at 85

48

best way to do so was to maximize the role of law. “Law was simply more rewarding than brute

power.”176

The legal system was redesigned. British judges would consult local qadis and muftis regarding

issues of Islamic law. Ordinary Muslim judges were placed on the lowest rung of judicial

administration. It was assumed that local norms could be incorporated into a British institutional

structure of justice.177

In practice the British were struck by the staggering plurality of Islamic law. Which is why they

stopped consulting local experts, whose loyalty they doubted anyway. In order to control the

great mass of juristic opinion, they created codes to deal with the law that they saw as

inconsistent and unsystematic. Furthermore, they commissioned the translation of a handful of

classical Islamic legal texts, so that the law could be more accessible to British judges. These

translations helped in codifying Islamic law for the first time in history, which was now divorced

from its Arabic roots. Furthermore, Islamic law was gradually transformed into a state law,

“where the legal and judicial independence of the socially grounded legal profession was

displaced by the corporate and extra-social agency of the modern state.”178 At the same time the

law being changed to resemble English law. 179

British perceptions of governance had a great impact on Anglo-Muhammadan law.180 These

perceptions were heavily derived from the interaction between law and the modern state. By way

of example, under Islamic law of homicide the victim’s next of kin have private, extra-judicial

176

Ibid at 85 177

Ibid 178

Ibid at 86 179

Ibid

180 Ibid

49

privileges. They have the power to decide whether to met out punishment or not. The British

held that this right was the exclusive prerogative of the state, which was the only institution that

had the legitimate right to exercise violence. In their opinion, under Islamic law criminals

escaped punishment too often, something that would not happen under an efficient state

discipline. Islamic law, Hastings complained, was “found on the most lenient principles and on

an abhorrence of bloodshed.”181 Thus, its British counterpart gradually replaced Islamic criminal

law.182 The effects of such changes in criminal law continued after the birth of Pakistan, an issue

that shall be addressed in the forthcoming section.

Furthermore, the adoption of the doctrine of stare decisis (precedent) added more rigidity to the

law. 183This doctrine had not evolved in Islamic law because the qadi was not deemed

sufficiently qualified to make law, unlike his British counterpart. The Shariah assigned legal

expertise to the mufti and the author-jurist. The qadi could formerly choose from the wide array

of opinions available to him. However, when the doctrine of binding precedent was introduced,

this option was no longer available to him. Thus Islamic law was divorced from the linguistic

and legal interpretation that had permitted it to accommodate various cultures through out the

world, and hence, to reign supreme.184 Furthermore, the higher court that Anglo-Muhammadan

lawyers were forced to follow was the Privy Council, which sat in London, hence divorcing the

law from the real and geographical concerns of the natives as well.185

By the dawn of the twentieth century, Islamic law had been reduced to the law of personal status

in the vast majority of Muslim countries.186 The institution of waqf had been virtually destroyed

to suit colonial economic interests. Even the institution of family law was no longer in the same

181

Ibid at 87 182

Ibid 183

Ibid at 88. 184

Ibid 185

Ibid 186

Ibid at 115

50

form that it used to be. Its substance had been severed from the methodology by which it had

operated. This is because conserving its methodology would have meant conserving the

linguistic and legal interpretive system as well as the human and institutional bearers of this

complex tradition. This could only be done with the conservation of the system that “produced

the entire sociology of legal knowledge, including the institutions of waqf and madrasa.”187

However, these institutions because of their independence stood in the way of the state.188 They

were an impediment to centralization, whether it was fiscal, legal, or otherwise.189 Therefore, “it

was both essential to and an inevitable consequence of the ways of the nation-state that personal

status had to be severed from its own, indigenous jural system, its own ecological environment,

so to speak.”190

This divorce was brought about through the use of various devices that comprised of both

interpretive and administrative techniques.191 For example, the doctrine of Darura ,that is,

necessity, which was limited to allowing the subject to violate the law to save his life such as by

eating prohibited food when starving, when extended to the realm of legal theory. The scope of

the concept was widened so much that the entire law was redefined within utilitarian principles

of necessity.192

The second device was procedural, by means of which it became possible to exclude certain

claims from enforcement, thus making the substantive provisions of Islamic law

187

Ibid at 116 188

Ibid 189

Ibid 190

Ibid 191

Ibid 192

Ibid

51

inconsequential.193 For example, to cancel the effects of child marriage, bureaucratic offices

were directed not to register any contract the parties to which had not reached the age of

majority.194

The other devices included the use of Takhayyur (selection) and Talfiq (amalgamation).195 The

former required the gathering together of opinions from various schools to form a single code.

The latter meant fusing elements of one opinion from various places within and without the

school. Traditional Islamic law had forbidden both jurists and state authorities from resorting to

such devices. The use of these devices restructured Islamic law in its entirety.196

The fourth device was what is called neo-ijtihad, a method of interpretation largely free from

traditional legal interpretation. The devices of Takhayur and Talfiq rest on this approach.

The final device is the new interpretation of the principle al-asl fi al-ashia al-ibaha, that is, the

original rule for all things is permissibility. This means that any law that does not contradict the

Shariah may be deemed lawful.197 The prohibition of child marriage and unilateral divorce by the

husband are considered to belong to this category. Furthermore, some institutions such as the

Council of Islamic Ideology in Pakistan have a practice of stating that where there is no direct

evidence from the Quran and Sunnah to show that the law is prohibited, it will be accepted as

valid.198 This approach further divorces the texts of Islamic law from the structure and

foundation on which it stands.

193

Ibid 194

Ibid 195

Ibid at 117 196

Ibid 197

Ibid at 117 198

Imran Ahsan Khan Nyazee, Outlines of Islamic Jurisprudence, Third addition (Pakistan , Federal Law House ,2005) at174

52

By using these devices, the state absorbed the Islamic legal traditions into its well-defined

structures of codification.199 Plurality of opinion is one of the defining features of the Shariah.

This plurality led to legal change as well as flexibility in the application of Islamic law. Litigants,

especially women could take refuge in any school and the qadi was able to apply any opinion

from with in that school to accommodate a particular situation.200 Codification, however,

eliminates all such possibilities and the judges and litigants are left with a single formulation and

a single mode of judicial application.201 “Unifying and homogenizing the law is one of the

primary concerns of the modern state.”202

Furthermore, codification, by its very nature eliminates one of the fundamental features of

Islamic hudud laws, which is the concept of shubh, that is, mistake/doubt in the mind of the

offender. This concept is responsible for the warding off of the hadd penalties, which since they

are a right of Allah, cannot be pardoned by the ruler. If the law is codified and clarified, this

device will fail to operate. This would lead to further rigidity in Islamic law.

It may be argued that codification produces certainty in the law.203 As a response, the existence

of doctrinal schools brings about enough certainty that litigants know what to expect. At the

same time the law is flexible enough to accommodate their particular circumstances. Without

going into too much detail, the main question is whether there is one right answer in law. If

everybody is right then there is flexibility. In Islamic law, all schools are considered right. If all

of them are right, then they all lead to the one goal.204

199

Wael Hallaq, An Introduction to Islamic Law (U.S.A, University Press Cambridge, 2009) at 118 200

Ibid 201

Ibid 202

Ibid 203

Imran Ahsan Khan Nyazee, Theories Of Islamic Law The methodology of Ijtihad (Pakistan, Islamabad, Islamic Research Institute Press, 1994) at 296 204

This paragraph is the result of a recent discussion with Professor Nyazee.

53

In the words of Professor Hallaq:

“The engineering of these devices and their orchestration to produce particular effects was the

work of the modern state, the appropriator and possessor of the law. That this institution was the

most central and commanding project ever to enter the world of Islam is nothing short of a

truism. As the primary and leading institution of European modernity, it constantly defined,

redefined and influenced nearly every entity with which it came in to contact. Whether

incorporated into the Muslim world by imposition or mimesis, its defining, constitutive and

fundamental features were nearly identical everywhere. It claimed the exclusive right to wage

war outside and, with the same exclusivity, to exercise violence within its own domains; it

declared itself sovereign while developing systematic mechanisms of surveillance and discipline;

it lived on nationalism as the body lives on circulated blood; it appropriated the exclusive right to

make and enforce law; and in all of this it was the big father of the citizen. As a man was head of

the family, the state was the head of society. The nation-state thus combined among its attributed

the power to rule and subdue, and the right and duty to defend, promote, and claim possession of

the nation, nationhood, nationality, and their subject- the citizen.”205

“One of the most salient features of the nation-state is its totalistic appropriation of the domain of

law, an appropriation that presupposed centralization and bureaucratization of the legal system.

There was no room for judges’ law-making, otherwise a defining attribute of the British case law

system. Case law is a diffused phenomenon, lacking in concentricity, a clear voice of authority

and a textual homogeneity that can pronounce the laws of the state in an authoritatively clear and

unmistakable fashion. A strong colonialist regime (and later nationalist governance) thus

required the code, the statute and the act as tools of total control. Even the British engaged in this

205

Wael Hallaq, An Introduction to Islamic Law (U.S.A, University Press Cambridge, 2009) at 118

54

form of legislation in their legal reconstruction of the colonies.”206 Thus, the state has acquired a

complete monopoly over law making. The only area it has left is the ‘ibadat (acts of worship).

Even in this category it controls subjects like zakah.207

The code not only embodied the objectives of the nation-state, but was also the primary means

by which Oriental legal systems were re-engineered.208 Law was a part of the nation, and

therefore it had to be national, becoming the primary embodiment of the nation-state’s will and

ambitions.

Even with the end of the colonial-era and the rise of nationalism in Muslim countries, the basic

structures introduced by the colonial masters were kept in place. This is because the nationalist

elite needed modernist structures not only to challenge Western colonization but also to rule their

own populations efficiently.209While the main objective of the colonials was economic

subjugation, the nationalist elite aimed at total rule. Since law was the exclusive domain of the

state, even though the law was substantively and substantially that of the Shariah, at the end it

was the state that decided the scope to which, or whether at all it was applicable. “This is

precisely the meaning of sovereignty, and sovereignty is no one else’s business but the state.”210

In this sense the claims of Western scholars like Steunebrink that the nation-state allows the

Shariah to become total are baseless.211He argues that this was not the situation that obtained

206

Ibid at 119 207

Imran Ahsan Khan Nyazee, Theories Of Islamic Law The methodology of Ijtihad (Pakistan, Islamabad, Islamic Research Institute Press, 1994) at 292 208

Wael Hallaq, An Introduction to Islamic Law (U.S.A, University Press Cambridge, 2009) at 119 209

Ibid at 141 210

See Wael Hallaq, An Introduction to Islamic Law (U.S.A, University Press Cambridge, 2009) at122. The book also explains how the nation-state has curtailed the rights that Islam gives to women. 211

Gerrit Steunebrink “Sovereignty, the nation state, and Islam”(2008) 15:1 Ethical Perspectives: Journal of the European Ethics Network 7 at 35. He argues that since the traditional structure of Islamic law with its checks and balances has been destroyed the state gives the Shariah a chance to become total.

55

under the Islamic empire. The Shariah never permeated all aspects of life.212 This assumption is

based on a misunderstanding of Islamic law; the structure of it has already been discussed.

Furthermore, the Shariah cannot become total in a nation-state because the legitimacy of law has

shifted from the domain of religion to that of the state. Whereas, it was the scholars of the

doctrinal schools that decided questions of legitimacy, it is now the state, whose capacity itself,

being a fictional person incapable of performing religious duties, is doubtful according to the

dictates of Islamic law. Furthermore, since the nation-state has restructured and replaced the

fundamental institutions associated with the Shariah, divorcing its textual sources from its

methodology and legal system there is little to prove that there is a place for Islamic law in the

Western concept of a nation-state at all.

Problems related to sovereignty and the nation-state have continued to cripple the Muslim world.

After gaining independence and adopting modernity, Muslim states were forced to depend on a

capitalist economy as well as technology. This led to dependency on Western countries

economically and otherwise. Adopting modern institutions led Muslim states to new pitfalls

rooted in colonialism. “The state- the most overpowering project of modernity- has therefore

come to the Muslim world to stay, in effect creating this most fundamental dilemma for Muslims

around the world: if Islamic law governed society and state for over twelve centuries, and if the

rule of law had a significance beyond and above the modern state’s concept of such rule, then

how is that sacred law accommodated by the irretrievable fact of the state, in effect the maker of

all laws? This is the question that permeates the fabric of all the discourse and practice of politics

and law in today’s Muslim world.”213

It is notable that even Christian thinkers struggled with the concept of sovereignty. The Catholic

scholar Jacques Maritain, who was the principal interpreter of the works of Thomas Acquinas in

the twentieth century, stated that only God is sovereign and the best political order was one that

212

Ibid. at 17. 213

Wael Hallaq, An Introduction to Islamic Law (U.S.A ,University Press Cambridge, 2009) at 141

56

recognized this. In his view, Christianity should not be combined with capitalism. Man is a

spiritual and material being that has a relationship to God. Therefore, his morals, as well as

social and political institutions must reflect this. 214 He stated:

“It is my contention that political philosophy must get rid of the word, as well as the concept, of

Sovereignty:-not because it is an antiquated concept, or by virtue of a sociological-juridical

theory of “objective law”; and not only because the concept of Sovereignty creates insuperable

difficulties and theoretical entanglements in the field of international law; but because,

considered in its genuine meaning, and in the perspective of the proper scientific realm to which

it belongs — political philosophy — this concept is intrinsically wrong and bound to mislead us

if we keep on using it — assuming that it has been too long and too largely accepted to be

permissibly rejected, and unaware of the false connotations that are inherent in it.”215

4.1 Pakistan as an Islamic State

Pakistan was created in 1947 to serve as a homeland for the Muslims of the sub-continent after

gaining independence from the British. Pakistan’s identity was distinctly Islamic and its reason

for coming into existence was asserted as being purely religious. Its founders however were anti-

colonial nationalists. The Objectives Resolution declared Allah as the sole sovereign of the

universe. While sovereignty belonged to Allah, it was delegated to the State of Pakistan. This

declaration was problematic from its very beginning. It betrayed the tension between the

sovereignty of Allah and that of the state.216 Due to this, the legal history of Pakistan has been

marked by a serious strain that the claim of “delegated sovereignty” implies. Its founders were

214

Willaim Sweet, "Jacques Maritain" Edward N. Zalta (ed.), (Fall 2008 Edition) The Stanford Encyclopedia of Philosophy, UR=<http://plato.stanford.edu/archives/fall2008/entries/maritain/> 215

Dan Philpott, "Sovereignty", The Stanford Encyclopedia of Philosophy (Summer 2010 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/sum2010/entries/sovereignty/> 216

Wael Hallaq, An Introduction to Islamic Law (U.S.A, University Press Cambridge, 2009 ) at148

57

modernist and their ideals were primarily Western, due to which they promoted the

administrative, bureaucratic and political institutions of the nation-state. While the Objectives

Resolution advocated a Western system of governance, it also stated, “Muslims shall be enabled

to order their lives…according to the teachings and requirements of Islam as set out in the Holy

Quran and the sunna.”217

Since the birth of Pakistan the ulama advocated that the laws of Pakistan should be reviewed so

that anything in them that was repugnant to the teachings of the Shariah was struck down. The

idea was that the Shariah should be applied in accordance with the principles of the traditional

doctrinal schools.218

When the first constitution was finally promulgated, it had an article that later became known as

the repugnancy provision. The effects of this article on the application of Shariah in Pakistan

were long lasting and the article was carried on to the Constitution of 1973, which is the one

being followed in Pakistan to date. Article 198 of the Constitution stated, “no law shall be

enacted that is repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunna.”

However, this article was restricted by clauses 2 and 3, which required that if any law was

contrary to the Shariah, a temporary advisory committee submit a proposal to the National

Assembly. However, they precluded the courts from hearing any cases that bore on Article

198.219

The dilemma became obvious in Zia ur Rahman v. The State. The prime minister pardoned some

criminals who had been convicted for the crime of murder. Under Islamic law, murder is not a

crime against the state. Rather, it is a mixed right of the individual and Allah, with the right of

217

Ibid 218

Ibid 219

Ibid at 148

58

the individual being predominant. Only the family of the victim can pardon the offender. The

court held that the Objectives Resolution is a supra-constitutional instrument. However, in State

v. Zia-ur-Rahman it was held that is not a supra-constitutional instrument. Rather its status is that

of a preamble, and it was incorporated as such.220 It was inserted in the Pakistan Constitution of

1973 in the form of Article 2A by President’s Order no.14 of 1985.

Until Zia ul Haq came in to power, the courts continued to interpret the law according to the

common law case method. Furthermore, the repugnancy provision was left dormant. With Zia

began the process of Islamization.221

Zia ul Haq was also responsible for the creation of the Federal Shariat Court in 1980. Its task was

to adjudicate on which laws were in contravention to the Shariah. Once such a law was found, it

would cease to have any effect. The Federal Shariat Court had limited jurisdiction. It could

neither adjudicate on constitutional matters, nor did it have jurisdiction over the fiscal law,

procedural law and law of personal status. It was also structurally limited because the Supreme

Court could reverse its decisions. Furthermore, since the judges of the Shariat court were not

ulama, their decisions were not always consonant to the ordinances that General Zia had

promulgated, neither were they consistent with the traditional rules of the Shariah.222

With time, members of the ulama class were appointed as judges of the Federal Shariat Court.

Furthermore, in 1998 the Enforcement of Shariat Ordinance was promulgated which declared

220

Imran Ahsan Khan Nyazee, Theories Of Islamic Law The methodology of Ijtihad (Pakistan, Islamabad, Islamic

Research Institute Press, 1994) at 39 State v. Zia-ur-Rahman,PLD 1972 lah. 382 221

Wael Hallaq, An Introduction to Islamic Law (U.S.A,University Press Cambridge , 2009) at 149 222

Ibid at 150

59

that the Shariah was the “supreme source of law in Pakistan and the Grundnorm for guidance of

policy-making by the state.”223

The Peshawar Shariat Bench challenged the limitations on the jurisdiction of the Federal Shariat

Court. It interpreted these exclusions as bearing on the Shariah itself and not on the state’s

legislative pronouncements on personal status.224 It ruled that the orphaned child was not entitled

to his or her parent’s share that the parent would have gotten were they alive. Thus, section 4 of

the Muslim Family Law Ordinance was repugnant to the Shariah. The government appealed this

decision and the higher court overturned it, stating that the Peshawar Bench did not have the

jurisdiction to decide on the matter and only the legislature, including the Council of Islamic

Ideology, which is its advisory body, was competent to determine it.

In March 2000 the Federal Shariat Court held that section 4 would not have any effect. It decided

that it was for the legislature to find a solution for the orphaned grandchildren. It agreed with the

Council of Islamic Ideology that the aunts and uncles of these children should be required to

provide for these children as if they were members of their own families. However, the court

stated, that the moral and social conditions of Pakistani society were not ready for the imposition

of such an obligation. Instead of imposing a duty of care upon the relatives, it required a

mandatory will. This ruling seems to be based on the belief that since the moral community no

longer exists, placing a duty of care would lead to a social outcry.225

223

Ibid.

224 Ibid

225 Ibid at 151

60

4.2 Conclusions

To conclude, the following remarks can be made about Islamic law and its interaction with the

nation-state. First, the Shariah in its traditional form was not just a judicial system and a legal

doctrine, but also a systematic practice that was related to the world around it.226

While the substance of the Shariah gave direction to social morality, it did not impose itself upon

it coercively. As far as procedure was concerned, the courts were pre-capitalist and non-

bureacratic.227

The Shariah’s legal pluralism gave it flexibility. Furthermore it was a system embedded in the

social order by which it was created, by the order itself.228 Due to this Islamic law not only

provided a link between metaphysics, theology and the material world, but also infused legal

norms with in a social order, largely by way of mediation rather than imposition. The process of

adjudication was therefore tied to the world around it.229

Furthermore, Islamic law was not engaged in transforming society, or managing or controlling it,

unlike the modern state. The separation between political realities and the legal system allowed

the mediation of “the agency of custom and social morality.” 230

Since the Shariah’s task was explicating doctrine, individual opinions of jurists did not form law

in the way that we understand the concept today.231 The law today is primarily a code and a

226

Ibid at 163 227

Ibid 228

Ibid at 165 229

Ibid 230

Ibid

61

statement of the will of the sovereign. Traditional Islamic law was an exercise in interpretation.

It did not involve the state or its coercive power. This was because there was no state in the first

place. The Shariah was not subject to change by legislation. Therefore, it did not express the

interests of the dominant class, unlike the situation we find in the modern nation-state.232 Under

the Shariah, the rule of law was a much more positive phenomenon compared to what it is in its

modern form.233

In the nation-state the Shariah has been reduced to a body of texts devoid of any social context,

at the same time being subjected to a type of politics that it had nothing to do with in pre-modern

times.234 This transformation of the Shariah has occurred due to its clash with the concept of a

modern state.235 This is because now the state is the master of the laws. It has destroyed the

traditional institutions in which the Shariah operated. The Shariah became a type of positive law

that was the result of the state’s will. The forces behind this transformation were codification,

centralization, bureaucratization and homogenization, to name a few.236 These devices ensured

complete compliance and militarization, which are the primary support of the modern state.237

These procedures helped divorce the Shariah from its anthropological past, stripping it of its

relevance.238

Whereas in the past the Shariah remained outside the clutches of dynastic rule, with its

codification it was transplanted with in the state structure, thus subjecting it to a political process

231

Ibid at 166 232

Ibid 233

Ibid 234

Ibid 235

Ibid 236

Ibid at 168 237

Ibid at168 238

Ibid

62

that it had largely remained outside of before, thus making it the core of political tension in the

world.239 In the modern world, law is the state’s tool of political strategy, used for reengineering

the social order.240 Law cannot exist without the state and the state is not considered sovereign if

it cannot make its own law.241 In this scenario, Islamic law cannot be implemented without the

agency of the state.242 Due to these factors, when the Shariah is advocated in the modern world,

what comes to mind is a powerful ideology that aims at transforming the social order.243 The

Shariah has become an element of a moralizing state, something that it was not in its pre-modern

context.244

5 Islamic State: An Oxymoron?

Based on the issues discussed in this thesis, the following conclusions can be made:

• The nation-state was born as a result of the religious wars of Europe

between the princes and the Pope.

• It was created with the purpose of avoiding external, particularly religious,

influence, whether in law making or otherwise.

• Thus, the nation-state is sovereign in its own territory.

• It is the maker and validator of all laws in the territory under its rule.

239

Ibid at 169 240

Ibid 241

Ibid 242

Ibid 243

Ibid 244

Ibid at 170

63

• The ruler is the agent of the state.

• Any contract that exists between the people and the state is purely

theoretical.

• Since the Second World War, systematic efforts have been made to curtail

the sovereignty of the state.

• The rulings of Islamic law imply the existence of a ruler.

• The ruler gains his authority through the contract of bay’ah.

• He is the agent (wakil), guardian (wali) and (sharik) of the Muslim

community, who delegate their affairs to him.

• The effects of this contract permeate all aspects of government, from the

immunity and liability of the ruler and judges, to the operation of the bayt al-mal.

• The era of the Rightly Guided Caliphs had elements of the Prophetic

mission, however the element of Divine Punishment was taken away. To believe

otherwise would have a negative impact on how Islamic law theory views the relation of

Muslims with non-Muslims. Furthermore, it would also mean that their era and its

64

institutions could not be imitated. Instead, while the Caliphs derived their moral authority

from their association with the Prophet, peace be upon him, their legal authority was the

result of the contract of bay’ah.

• Under Islamic law, the ruler is responsible not only for enforcing the rights

of individuals, but also the rights of Allah, to whom he is personally responsible.

• The rights of Allah are immutable and cannot be suspended.245

• The rights of Allah are really the rights of the poor.246

• Only human beings are the subjects of Islamic law, thus even if legal

personality is granted to a non-human, religious duties cannot be expected of it.

• Islamic law does not recognize a separate legal personality for the Muslim

community, nor its collective property, the bayt al-mal. To do so would be a great blow

to the rights of individuals under Islamic rule.

• The waqf is a suspension of property. In fact, since this institution is

entirely independent of the state, its existence was responsible for delay in the entry of

the concept of legal personality in the Muslim world. Colonials had to dismantle it to

245

Imran Ahsan Khan Nyazee “Shar’iah Bill of Rights for the New Millenium” (2001) Advanced Legal Studies Institute < http://www.scribd.com/doc/47867444/Shariah-Bill-of-Rights> at 5

246 Imran Ahsan Khan Nyazee “Shar’iah Bill of Rights for the New Millenium” (2001) Advanced Legal Studies

Institute < http://www.scribd.com/doc/47867444/Shariah-Bill-of-Rights> at 5

65

enable the Western system of governance to operate. That contemporary Muslims are

using the concept to demonstrate that Islamic law recognizes legal personality is baffling.

• The modern concept of sovereignty makes political authority superior to

religious authority.

• Under traditional Islamic law, legal authority is the domain of the doctrinal

schools. It does not reside with the ruler or government.

• The advent of colonialism and the rise of the nation-state have

fundamentally changed the structure of Islamic law.

• Under the Hanafi concept of wakalah, only the party managing the

business can be sued.247 The title in goods always passes to the principal rather than the

agent. Since the rights of performance belong to the agent, the principal cannot be sued

for performance.248 This means that since the ruler is the agent of the Ummah, the

Ummah as the principal stays in the background. The ruler is liable for criminal behavior.

He does not have immunity, unless there is a genuine error in official capacity. An

example of this is the case of Sayyiduna Umar (RA) who required a pregnant woman to

attend his court. Since he had a reputation for being very strict, she became so fearful that

she suffered a miscarriage. On the advice of Sayiduna Ali (RA) he paid damages to her

for the injury he had caused.249 The situation in Pakistan, on the other hand is completely

247

Imran Ahsan Khan Nyazee , Islamic Law Of Business Organization Corporations (Islamabad, Pakistan, Islamic Research Institute Press, 1998) at 180 248

Imran Ahsan Khan Nyazee , Islamic Law Of Business Organization Corporations (Islamabad, Pakistan, Islamic Research Institute Press, 1998) at 24 249

Abd al-Qadir Awdah al-Tashri’ al-Jina’I al-Islami vol.2, 117

66

different. Articles 248 (2) and (3) of the constitution prohibit the initiation or continuation

of any criminal proceedings against the president during his office. Under the Islamic rule

the Ummah as a whole is responsible for the establishment of the rights of Allah, and the

ruler is the their enforcer. The authority granted to the state under western law is difficult

to justify because it is not responsible to Allah Almighty. However, the Caliph is

answerable to him.

• The state can be given legal personality under Islamic law as an

administrative tool and as an agent of the Ummah.250 This will satisfy the requirements

of International law. However, it cannot be given religious duties. The ruler will be the

agent managing the Ummah.

<http://islamport.com/w/sys/Web/3794/617.htm?zoom_highlight=%C7%E1%CA%DA%D2%ED%D1+%DA%E3%D1> 250

Imran Ahsan Khan Nyazee “Shar’iah Bill of Rights for the New Millenium” (2001) Advanced Legal Studies Institute < http://www.scribd.com/doc/47867444/Shariah-Bill-of-Rights> at 6

67

68

69

«Text should use the Body Text or Normal style. The default style is Times Roman, 12 pt, 1.5

line spacing, block style (no first line indent), 12 points of extra space above each parapgraph.